35. Poore, supra n. 26, at II, p. 1339.

36. Story, supra n. 2, at 1, §114.

37. Poore, supra n. 26, at II, p. 1313. The 1776 Constitution provided further that no person should "ever be obliged to pay tithes, taxes or any other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry, contrary to what he believes to be right, or has deliberately or voluntarily engaged himself to perform." 38. Id. at 1. p. 276.

19. Cobb, supra n. 24, p. 483.

40. Poore, supra n. 26, at II, p. 1541.

41. Id. at p. 1543.

42. Id. at 1, p. 819. The protection of religious liberty was restricted to "all persons professing the Christian religion." The term "Christian" rather than "Protestant" was used apparently because of the presence of a large Catholic population.

43. Id. at II, p. 1413.

44. Id. at pp. 1626-27.

45. Id. at 1, p. 383.

46. Reba Carolyn Strickland, Religion and the State of Georgia in the Eighteenth Century (New York: Columbia University Press, 1939), p. 164.

47. Poore, supra n. 26, at 1, p. 379.

48. Cobb, supra n. 24, pp. 490-92.

49. Id. at pp. 493-94.

50. Id. at pp. 495-97.

51. Id. at pp. 497-98. See, Leonard Williams Levy, Judgments: Essays on American Constitutional History (Chicago: Quadrangle Books, 1972), pp. 200-01.

52. In Massachusetts, for example, "(i)t was not an establishment like that of the Church of England... because the Legislature had no power to regulate doctrine and enforce conformity; and because dissenters received a share of the taxes levied for religious purposes. Consequently, it is more technically accurate to describe the Congregationalist order as favored rather than legally established in Massachusetts." John Francis Thorning, Religious Liberty in Transition (Washington, D.C.: The Catholic University of America, 1931), p. 27.

53. Cobb, supra n. 24, p. 507. Actually four states excluded ministers from public office, after Georgia adopted a new constitution in 1789. See Article 1, §18 in Poore, supra n. 24, at 1, p. 385.

54. Thorning, supra n. 52, p. 3. See also Cobb, supra n. 24, p. 510. Issac Cornelison, The Relation of Religion to Civil Government in the United States of America (New York: Putnam, 1895), pp. 95, 111.

64. Baker v. Fales, 16 Massachusetts 487 (1820).

65. Cornelison, supra n. 54, p. 110. Religious tests for office were abolished at the State constitutional convention of 1820.

66. See, Poore, supra n. 26, pp. 278-88 (Delaware); II, pp. 1314-25 (New Jersey); II, pp. 1341-51 (New York).

67. Id. at II, p. 1554. 68. Id. at I, p. 832. 69. Id. at II, p. 1418.

70. Id. at p. 1446.

71. Id. at pp. 1632-3.

72. Id. at p. 1663.

73. See id. at 1, pp. 384-426.

74. Cobb, supra n. 26, pp. 511-12.

75. Id. at p. 520.

76. Pennsylvania, 1913; Delaware and Tennessee, 1915; New Jersey, 1916; Alabama, 1919; Georgia, 1921; Maine, 1923, Kentucky, 1924; Florida and Idaho, 1925; Arkansas, 1930. Avin Johnson and Frank Yost, Separation of Church and State in the United States (New York: Greenwood Reprint Company, 1948), p. 33. 77. Abington School District v. Schempp, 374 U.S. 203 (1963).

78. Lemon v. Kurtzman, 403 U.S. 602 (1971).

79. McClellan, supra n. 2, pp. 135-36.

80. Everson v. Board of Education, 330 U.S. 13 (1947).

81. Edward S. Corwin, "The Supreme Court as a National School Board," as reprinted in A Constitution of Powers in a Secular State (Charlottesville, Virginia: Michie Company, 1951), p. 116.

82. Abington School District v. Schempp, 374 U.S. at p. 217.

83. Adamson v. California, 332 U.S. 72 (1947). “An Amendment to the Constitution should be read," said Justice Frankfurter in the same case, “in a sense most obvious to the common understanding at the time of its adoption." Id. at p. 63. 84. Charles Miller, The Supreme Court and the Uses of History, (Cambridge, Massachusetts: Harvard University Press, 1969), p. 195.

85. Sidney Hook, as quoted in Miller, id.

86. In The Federalist No. 45, James Madison explained that "the powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people; and the internal order, improvement and prosperity of the State." The Federalist p. 303 (Modern Library Edition).

87. Six of the States which ratified the Constitution before it went into effect proposed lengthy lists of amendments. "It has frequently been stated that the motive behind these amendments was a desire to secure greater protection for the natural rights of the people. This is true only in part. An examination of the proposals of the first three states to make them, Massachusetts, South Carolina, and New Hampshire, will afford sufficient evidence of the fact that the members of these conventions were much more perturbed about the rights and powers of the states than about the rights of the people." Massachusetts proposed nine amendments but only the sixth, referring to indictment by grand jury, dealt with individual liberty as such. In one place the short list proposed by South Carolina makes mention of "the freedom of the people," but otherwise it deals with the issue of the "sovereignty of the states." Of the twelve proposed amendments offered by New Hampshire, only the last three have a direct bearing on individual liberty. Only Virginia and North Carolina, it seems, proposed a true bill of rights to the people. Benjamin Wright, American Interpretations of Natural Law (Cambridge, Massachusetts: Harvard University Press, 1931), p. 147.

88. As quoted in McClellan, supra n. 2, p. 147.

89. Id. at pp. 147-48.

90. Barron v. Baltimore, 7 Peters 250 (1833).

91. Permoli v. New Orleans, 3 Howard 609 (1845).

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92. See C. Warren, The New “Liberty" Under the Fourteenth Amendment, 34 Harvard Law Review 436 (1926).

93. Prudential Insurance Company v. Cheek, 259 U.S. 530 (1922).

94. Gitlow v. New York, 268 U.S. 666 (1925).

95. Near v. Minnesota, 283 U.S. 697 (1931).

96. DeJonge v. Oregon, 299 U.S. 353 (1937) [freedom of assembly]; Cantwell v. Connecticut, 310 U.S. 296 (1940) (Free exercise of religion].

97. Since 1961 the doctrine of incorporation has been extended beyond the First Amendment to the Fourth, Fifth, Sixth, Eighth and Ninth Amendments. See e.g., Duncan v. Louisiana, 391 U.S. 145 (1968).

98. Corwin, supra n. 81, p. 106.

99. Mark Howe, The Garden and the Wilderness: Religion and Government in American Constitutional History, (Chicago: University of Chicago Press, 1965), p. 31. 100. Id.

101. Francis O'Brien, Justice Reed and the First Amendment, (Washington, D.C.: Georgetown University Press, 1958), p. 134. The significance of the word "respecting" in the establishment clause should thus be noted: Congress is to make no law "respecting" (i.c., dealing with the subject of) the establishment of religion, so that existing church-state relations in each State shall remain undisturbed. In the words of Justice Story: "the whole power over the subject of religion is left exclusively, to the State governments, to be acted upon according to their own sense of justice, and the State constitutions." Story, supra n. 2, at III, §1873. Jefferson embraced the same view: “I consider the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises. This results not only from the provision that no law shall be made respecting the establishment or free exercise of religion, but from that also which reserves to the States the powers not delegated to the United States. Certainly, no power to prescribe any religious exercise, or to assume authority in religious discipline, has been delegated to the General Government. It must then rest with the States...." Jefferson to Rev. Samuel Miller, XI, The Writings of Thomas Jefferson (Washington, D.C.: Andrew Lipscomb Co., 1903-04, issued under the auspices of the Thomas Jefferson Memorial Association of the United States), p. 428.

102. Everson v. Board of Education, 330 U.S. 1, 31 (Rutledge, J. concurring).

103. Engel v. Vitale, 370 U.S. at p. 442 n. 7 (Douglas, J. concurring).

104. See C. Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights? The Original Understanding, 2 Stanford Law Review 5-139 (1949).

105. O'Brien, supra n. 101 at p. 116.

therefore,

106. Id. at pp. 116-17. "A majority of people in any state in this union can, if they desire it," said Blaine in an "open letter" to The New York Times, "have an established church..." Francis O'Brien, The States and 'No Establishment': Proposed Amendments to the Constitution Since 1798, 4 Washburn Law Journal 188 (1965). Between 1876-1930, notes O'Brien, nineteen separate amendment proposals were introduced without success in Congress for the purpose of making the religious provision of the First Amendinent binding on the States. Id. at p. 210. See also A. Meyer, The Blaine Amendment and the Bill of Rights, 64 Harvard Law Review 939 (1951).

107. Corwin, supra n. 81, at p. 116. Under the doctrine of incorporation, the Court interprets the word "liberty" of the due process clause to include the absence of an established religion, even though it is not a personal liberty like freedom of speech, press, assembly or religion that an individual can exercise. Nevertheless, it is not necessary, according to the Court, for parties protesting state religious programs to produce evidence that their religious liberty has in any way been abridged. As the Court asserted in Schempp: "It goes without saying that the laws and practices involved here can be challenged only by persons having standing to complain.

But the requirements for standing to challenge state action under the establishment clause, unlike those relating to the free exercise clause, do not include proof that particular religious freedoms are infringed." Abington School District v. Schempp, 374 U.S. at p. 224. Why the requirements should not be the same for the free exercise clause and the establishment clause the Court has not explained. Moreover, there is a compelling argument that by its actions the Court itself has denied the right of free exercise to a majority of public school children, who are in effect compelled through a combination of federal court rulings and state compulsory school attendance laws to shed their constitutional rights of religious freedom while under the control of government authorities.

108. The Helms Amendment to S. 210, 96th Cong., 1st Sess. was subsequently shifted to S. 450, a bill dealing with the jurisdiction of the Supreme Court. The House Judiciary Committee, however, refused to take action on the measure. See Gerald Gunther, Constitutional Law (Mincola, New York: Foundation Press, 1979 Supplement) pp. 1-2. Proposed amendments to the Constitution to reverse the Prayer Decision have been introduced in most sessions of Congress since 1962, that sponsored by Everett Dirksen (R.-III.) achieving the widest support. On September 21, 1966, Dirksen carried a majority with him, but the vote of 49-37 fell short of the two-thirds majority necessary to propose a constitutional amendment. Dirksen's proposed amendment (S.J. Res. 148) was one of 150 measures introduced in the 88th Congress to reverse the Court's holding in the Prayer Decision. See Congressional Quarterly, II Congress and the Nation, pp. 410-11 (1969).

[From 27 Villanova Law Review, 5 (1982)]

CONGRESSIONAL RETRACTION OF FEDERAL COURT JURISDICTION OVER THE RESERVED POWERS OF THE STATES: THE HELMS PRAYER BILL AND A RETURN TO FIRST PRINCIPLES

(By James McClellan*)

Since the earliest days of the Warren Court, countless bills have been introduced in Congress which would deny the federal courts jurisdiction over a great variety of subjects ranging from busing to abortion. The exceptions clause of article III of the Constitution provides Congress with the authority to enact such bills.2 While none of these proposed bills has been enacted into law, it is noteworthy that two have passed at least one house of Congress, and that both of these have sought to deny all federal courts, including the Supreme Court, jurisdiction over certain cases arising under the fourteenth amendment. The first of these two bills, introduced by Representative William Tuck of Virginia in the 88th Congress in 1964, would have eliminated federal court jurisdiction over state legislative apportionments. It passed the House of Representatives but was defeated in the Senate. The second measure, the Helms Prayer Bill, passed the Senate two years ago but failed to get out of the House Judiciary Committee. The Helms Bill sought to deny all federal court jurisdiction over cases involving voluntary prayer in the public schools. Its chief sponsor was Senator Jesse Helms of North Carolina, who has been introducing similar legislation since 1974. He has again introduced it in the 97th Congress, and its chances of passage seem excellent, not only because it passed before under a Democrat-controlled Senate, but also because it was endorsed by the Republican Party platform of 1980 and apparently also by President Reagan."

These bills limiting jurisdiction all have one subject in common: They all deal with civil rights issues. This is true of every bill introduced since 1957 which has challenged the jurisdiction of the federal courts. Moreover, these bills all involve

*Chief counsel and staff director, Separation of Powers Subcommittee, Committee on the Judiciary, U.S. Senate, B.A., University of Alabama, 1960; Ph. D. 1964, J.D., 1981, University of Virginia.

1 See Baucus & Kay, The Court Stripping Bills: Their Impact on the Constitution, the Courts, and Congress, 27 Vill. L. Rev. —, — (1982).

2 U.S. Const. art. III, § 2. Cl. 2. The exceptions clause states: "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make." Id.

3 See H.R. 11926, 88th Cong., 2d Sess. (1964).

S. 210, 96th Cong., 1st Sess. (1979). See also note 5 and accompanying text infra.

5 The Helms Prayer Bill originally was an amendment to a bill which created the Department of Education. S. 210, 96th Cong., 1st Sess. (1979). The amendment proposed by Senator Helms have added two new sections to 28 U.S.C.:

"81259. Notwithstanding the provisions of sections 1253, 1254, and 1257 of this chapter the Supreme Court shall not have jurisdiction to review, by appeal, writ of certiorari, or otherwise, any case arising out of any State statute [which] relates to voluntary prayers in public schools and public buildings.

"81364. Notwithstanding any other provision of law, the district courts shall not have jurisdiction of any case or question which the Supreme Court does not have jurisdiction to review under Section 1259 . . . S. 210, 96th Cong., 1st Sess. (1979). The Helms amendment was subsequently attached to a bill dealing with the jurisdiction of the Supreme Court. See S. 450, 96th Cong., 1st Sess. (1979). The House Judiciary Committee, however, refused to take action on the measure. See G. Gunther, Constitutional Law 57 (10th ed. 1980); G. Gunther, Constitutional Law 1 (1981 Supp.).

Proposed amendments to the Constitution which would reverse the Supreme Court's decision on prayers in public schools have been introduced in most sessions of Congress since 1962. Such an amendment sponsored by Senator Everett Dirksen during the 88th Congress achieved the widest support. On September 21, 1966, Dirksen carried a majority of the Senate with him, but the vote of 49-37 fell short of the two-thirds necessary to propose a constitutional amendment. Dirksen's proposed amendment (S.J. Res. 148) was one of the 150 measures introduced in the 88th Congress to reverse the Court's holding in the prayer decision. See 2 Congress and the Nation 410-11 (1969).

6 The Republican Party platform states: "We support Republican initiatives in the Congress to restore the right of individuals to participate in voluntary, non-denominational prayer in schools and other public facilities. We applaud the action of the Senate in passing such legislation." Cong. Q. 2035 (July 19, 1980). President Reagan specifically supported congressional efforts to restore voluntary prayer in the schools in an interview with reporters from the Washington Star. The text of the interview is printed in the Washington Star, August 5, 1981, at A-4. During the Warren Court years, Congress was provoked by several of the Court's decisions. In response, the Jenner-Butler Bill was introduced to curtail Supreme Court jurisdiction over cases involving subversive activity and state bar admission. S. 2646, 85th Cong., 1st Sess. (1957).