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the fourteenth amendment. While a few deal with rights under the equal protection clause, the overwhelming majority-of which the Helms Bill is representativeaffect rights guaranteed by the Bill of Rights as applied to the states through the due process clause of the fourteenth amendment. Individually considered, they represent a rejection of specific Supreme Court holdings. Taken together, however, they reveal a distinct pattern of widespread dissatisfaction with the Court's nationalization of the Bill of Rights, or what is commonly referred to as the doctrine of incorporation.& Although no member of Congress has articulated the conflict in quite these terms, it is clear that what we are witnessing is something more than random dissatisfaction with judicial legislation. More fundamentally, these legislative efforts to reverse the Court are part of a growing, and increasingly popular, movement in Congress to return power over civil rights to the states. The controversy, then, is not simply about the substantive meaning of these rights, but about federalism. It is not simply about what our rights are, but about who is to say what they are.

Indeed, none of the bills limiting federal court jurisdiction introduced over the past twenty years has sought to impose upon the American people of the states a single-minded, monolithic definition of a particular liberty guaranteed by the Bill of Rights or by the fourteenth amendment. Instead, these bills invariably seek to lodge final review in the state supreme courts and to allow the states to decide for themselves the content of individual freedom.Thus, the thrust of this legislation is not uniformity, but diversity. As I shall presently argue, this is not only entirely in keeping with the original purpose of the Bill of Rights, but also is a modest attempt at restoring the original design of our constitutional system. Our federal system, as originally conceived, left the individual states free to define the civil rights of their citizens because the Bill of Rights was applicable only to the federal government. 10 Nevertheless, this system has been radically altered—without an explicit constitutional amendment and without public debate over the merits of the alteration-by the Supreme Court's incorporation of the Bill of Rights into the word “liberty” in the due process clause of the fourteenth amendment. 11

Turning back to the period during which the Bill of Rights was considered and adopted, we recall that it was George Mason of Virginia who proposed at the Constitutional Convention of 1787 that a declaration of rights be included in the Constitution. 12 Yet, Elbridge Gerry's motion that a committee be appointed to prepare such a statement was voted down unanimously. The members of the Convention generally agreed that a bill of rights was unnecessary since the expressly enumerated powers of the federal government did not include power over “the liberties of the people.”'13 Without much of a struggle, however, the Federalist supporters of the Constitution agreed to the adoption of a bill of rights during the ratification effort in the state convention. 14 One reason they so readily acceded to Antifederalist demands for a bill of rights was that such a declaration changed nothing regarding the constitutional structure, and neither reduced federal power nor increased state power. 15 The Bill of Rights, in other words, simply declared what was already un


The Jenner-Butler Bill thus represents the first of a continuing series of bills which seek to withdraw the jurisdiction of the Supreme Court and/or the lower federal courts in cases relating to certain specified civil rights.

* For a discussion of the doctrine of incorporation, see notes 29-46 and accompanying text infra.

There are opposing views regarding the effect of withdrawal of Supreme Court jurisdiction. One writer, proceeding upon the assumption of judicial supremacy argues that once the Court's jurisdiction is removed, its prior decisions on the issue will be “frozen." Thus, the state courts by virtue of their obligation under the supremacy clause, will be forced to uphold the presumably unpopular Supreme Court decisions on the issue. See Redish, Congressional Power to Regulate Supreme Court Appellate Jurisdiction Under the Exceptions Clause: An Internal and External Examination, 27 Vill L. Rev.-,-(1982).

Most scholars agree, however, that once the Supreme Court's appellate jurisdiction is removed, the state courts would be free to interpret the Constitution as they saw fit and could disregard prior Supreme Court decisions. See Ratner, Majoritarian Constraints on Judicial Review: Congressional Control of Supreme Court Jurisdiction, 27 Vill L. Rev.-,-(1982).

10 For the discussion of how the Framers viewed the Bill of Rights, see text accompanying notes 12-17.

11 For a discussion of the doctrine of incorporation, see text accompanying notes 29-46 infra.

12 See 5 J. Elliot, The Debates of the Adoption of the Federal Constitution 538 (1888). See also J. Madison, Notes on Debates in the Federal Convention of 1787 630 (A. Koch ed. 1966); B. Wright, American Interpretations of Natural Law 124-26 (1931).

13 See 5 J. Elliot, supra note 12, at 538; J. Madison, supra note 12, at 630. See generally B. Schwartz, The Bill of Rights: A Documentary History 437-38 (1971). 14 See B. Schwartz, supra note 12, at 762–66, 852, 932–33. 16 See id. See also J. McCellan, Joseph Story and the American Constitution 145 (1971).


derstood by the Framers of the Constitution—that the national government had no authority in the general area of civil liberties. Thus, Federalists and Antifederalists were in general agreement that the States, not the federal government, would determine under their own bills of rights the meaning and substance of civil liberty within their respective jurisdictions. As James Madison explained in the Federalist, "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.” 16 Conse quently, the debate in 1787 was not over the substantive meaning of the civil liberties, but rather over the issue of whether the Constitution should be explicit regarding their enforcement. 17

It is important to bear in mind, therefore, that the Bill of Rights actually had a dual purpose: to protect each individual against the abridgment of his civil liberties by the federal government, and to assure each state that the federal government would not encroach upon the jurisdiction of the states over such matters. In the latter regard, the Bill of Rights is essentially a states' rights document. Each amendment was a guarantee to the individual and to the states. Indeed, the protection of state's rights by the Bill of Rights was widely regarded in 1791 as far more important than the protection it afforded to the individual. Six of the states which ratified the Constitution urged the adoption of numerous amendments before it went into effect. 18 With respect to those proposed amendments, Benjamin F. Wright has noted:

“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 disturbed about the rights and powers of the States than about the rights of the people.”1

Massachusetts proposed nine amendments, but only the sixth, which referred to indictment by grand jury, dealt with individual liberty as such. The short list proposed by South Carolina made mention of “the freedom of the people," but otherwise dealt with the issue of the “sovereignty of the states," while of the twelve proposed amendments offered by New Hampshire, only the last three had a direct bearing on individual liberty. Only Virginia and North Carolina, it seems, proposed a true bill of rights for the people. 20

Of further significance is the fact that the First Congress, which proposed the Bill of Rights, rejected an attempt to apply portions of it to the states. The fifth resolution of James Madison's proposed series of amendments for a bill of rights provided that “[n]o State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases." 21 But Madison's suggestion was defeated in the Senate. As Tucker of South Carolina observed.

"This (proposal) is offered as an amendment to the Constitution of the United States, but it goes only to the alteration of the constitutions of particular States. It will be much better, I apprehend, to leave the State Governments to themselves, and not to interfere with them more than we already do; and that is thought by many to be rather too much." 22

Charles Pinckney, a Framer of the Constitution, later explained the purpose and effect of the Bill of Rights in these striking words:

"When those amendments became a part of the Constitution, it is astonishing how much it reconciled the States to that measure; they considered themselves as secure in those points on which they were the most jealous; they supposed they had placed the hand of their own authority on the rights of religion and the press, and ... that they could with safety say to themselves: 'On these subjects we are in future secure; we know what they mean and are at present; and such as they now are, such are they to remain, until altered by the authority of the people themselves-no inferior power can touch them.'” 23

16 The Federalist No. 44. at 323 (J. Madison) (H. Dawson ed. 1964) (emphasis added). 17 See text accompanying notes 12-15 supra. 18 See B. Wright, supra note 12, at 146. See also B. Schwartz, supra note 13, at 762-66, 852, 932-33

19 See B. Wright, supra note 12, at 146.

20 See id at 146-47. For an analysis of the origin and development of the Bill of Rights, as well as the effect of the doctrine of incorporation on the Framers' view of the Bill of Rights, see J. McClellan, supra note 15, at 142-59.

21 1 Annals of Cong. 435 (J. Gates ed 1789).
22 Id at 755
23 10 Annals of Cong. 128 (1800)

For nearly a century and a half, the Supreme Court respected these views, thereby securing one of the major objectives of the Bill of Rights. Speaking for a unanimous Court, Chief Justice Marshall declared in Barron v. Baltimore 24 that the first eight amendments "contain no expression indicating an intention to apply them to the state governments." 25 This position was consistently maintained in subsequent decisions involving the first, fourth, fifth, sixth, seventh, and eighth amendments between 1833 and 1868.26 In Permoli v. New Orleans, 27 for example, a unanimous Court upheld a municipal ordinance challenged by the Catholic Church as a denial of the free exercise of religion, asserting that “[t]he Constitution makes no provision for protecting the citizens of the respective states in their religious liberties; this is left to the State constitutions and laws." 28 And even after the adoption of the fourteenth amendment, which prohibited the states from denying any person life, liberty, and property, the Supreme Court continued to follow and apply Barron-a factor strongly supportive of the view that the fourteenth amendment was not intended by those who witnessed its creation and sought to apply its provisions to defeat the original purpose of the Bill of Rights. Throughout the late nineteenth and early twentieth centuries, State and Federal courts uniformly upheld the principle that the Bill of Rights applied only to the Federal Government. "In at least twenty cases between 1877 and 1907," Charles Warren observed, “the Court was required to rule upon this point and to reaffirm Marshall's decision of 1833.” 29 As late as 1922, in Prudential Insurance Co. v. Cheek, the Court declared that “neither the fourteenth amendment nor any other provision of the Constitution imposes restrictions upon the state about freedom of speech.” 30

The Court suddenly reversed itself in 1925 when it offhandedly remarked in Gitlow v. New York that “[fjor present purposes we may and do assume that freedom of speech and press—which are protected by the first amendment from abridgment by Congress-are among the fundamental personal rights and liberties protected by the due process clause of the fourteenth amendment from impairment by the states.31 Thus began the piecemeal incorporation of first amendment freedoms into the word “liberty' of the due process clause of the fourteenth amendment, reversing sub silentio and Barron decision and thereby undermining one of the great objects of the Bill of Rights-viz., exclusive State jurisdiction and control over the freedoms protected by the first eight amendments. In 1931, in Near v. Minnesota, 3 the Court embarked upon the revolutionary course outlined in Gitlow by incorporating freedom of speech and press into the Fourteenth amendment. In subsequent cases, the Court arbitrarily transferred freedom of assembly 33 and freedom of religion 34 into the fourteenth amendment, finally completing the incorporation of the first amendment with the inclusion of the Establishment Clause in Everson v. Board of Education in 1947.35 Since 1961 the doctrine of incorporation has been extended to the fourth, fifth, sixth, eighth, and ninth amendments. 36 As Charles Fairman has noted, however, “the record of history is overwhelming against” the idea that section 1 of the fourteenth amendment "was intended and understood to impose Amendments I to VIII upon the states . . ." 37

Viewed in historical perspective, the Everson case was significant in two respects. For the first time, the Supreme Court interpreted the establishment clause as a re

32 40

24 32 U.S. (7 Pet.) 243 (1833). 25 Id. at 250.

26 See, e.g., Twitchell v. Pennsylvania, 74 U.S. (7 Wall.) 321 (1868) (sixth amendment inapplicable to the states); Pervear v. Massachusetts, 72 U.S. (5 Wall.) 475 (1867) (eighth amendment applies only to the national government); Withers v. Buckley, 61 U.S. (20 How.) 84 (1855) (fifth amendment inapplicable to the states); Smith v. Maryland, 59 U.S. (18 How.) 71 (1855) (fourth amendment inapplicable to the states); Fox v. Ohio, 46 U.S. (5 How.) 410 (1847) (fifth amendment applies only to the federal government); Permoli v. New Orleans, 44 U.S. (3 How 589) (1845) (first amendment not applicable to the states); Lessee of Livingston v. Moore, 32 U.S. (7 Pet.) 469 (1833) (seventh amendment inapplicable to the states).

27 44 U.S. (3 How.) 589 (1845). 28 Id. at 609.

29 C. Warren, “The New 'Liberty' Under the Fourteenth Amendment," 39 Har. L. Rev. 431 (1926).

30 259 U.S. 530 (1922).
31 268 U.S. 666 (1925).
32 283 U.S. 697 (1931).
33 DeJonge v. Oregon, 299 U.S. 353 (1937).
34 Cantwell v. Connecticut, 310 U.S. 296 (1940).
35 330 U.S. 1 (1947).
36 Use footnote No. 45 from galley-but omit In Re Oliver.

37 C. Fairman, “Does the Fourteenth Amendment Incorporate the Bill of Rights,” 2 Stan. L. Rev. 139 (1949-50).

striction on the States. By this bold and fundamental innovation the Court overturned more than a century of constitutional law that had regularly permitted the States to determine church-state relationships in accordance with their own laws and constitutions. Second, and equally novel, was the Court's absolutist theory of religious establishment, holding that the first amendment erected a "wall of separation" between church and state which prohibited a state from giving any aid to and kind-not merely to specific religious sects but to religion generally. It is upon the bases of these pronouncements in Everson that the Court subsequently ruled in Engel v. Vitale 38 that the voluntary recitation of a state-composed school prayer, though nondenominational, constituted an establishment of religion.

The Framers of the Bill of Rights were nevertheless generally inclined toward the view that government had a duty to promote religion and morality in society; and at the time the Bill of Rights was adopted most states actually provided varying degrees of aid to established religions within their jurisdictions. 39 The “Wall of separation” rhetoric which appears in a private letter written by Thomas Jefferson, was not widely accepted even in the nineteenth and early twentieth centuries. On the subject of Bible-reading in the public schools, for example, the State of Massachusetts actually required this practice in 1828; and between 1913-1930, eleven more States enacted similar statutes. 41 Little wonder that Mark de Wolfe Howe has been led to describe the Court's incorporation of the establishment clause and imposition of the "wall of separation” doctrine as a complete “distortion of the intellectual background of the first amendment." 42

In response to these developments, the Helms Prayer Bill looks to the restoration of the establishment clause to its original purpose; for its effect would be to lodge in the highest courts of each State final authority over questions involving this one aspect of state aid to religion. Whether the bill succeeds or fails, Senate consideration of its merits will serve to focus public attention on the origin and purpose of both the establishment clause and the Bill of Rights generally, while possibly generating debate on the doctrine of incorporation itself-a public debate that is long overdue and goes to the very heart of the fundamental question of whether it is wise or proper for nine unelected officials, serving for life, to possess the awesome power of deciding what our freedoms shall be. When the Constitution was adopted, the American people were overwhelmingly agreed that erty is safest when protected at the State and local level. The doctrine of incorporation, which has become the great wellspring of judicial activism in our time, thus runs counter to the basic proposition upon which our nation was founded. Putting aside the issue of whether Congress has the authority under Article III to limit the appellate jurisdication of the Supereme Court-and return jurisdiction seized by the Court back to the States-an issue which both the Constitution and the Court itself have, in this writer's judgment, answered in the affirmative-the great strength of the Helms Prayer Bill lies in the fact that it promises to stimulate public discussion and debate about the very essence of the American political system.

In another sense, of course, the debate over court regulation under the exceptions clause of article III is one of separation of powers and democratic theory. We live in a democratic republic, based on separation of powers and checks and balances. Without the power to regulate the Court's jurisdiction, particularly when the Court exceeds its authority by creating its own jurisdiction, Congress is helpless to limit the judicial power and the Court is exempted from the checks and balances system-sitting, like a continuous constitutional convention, rewriting the fundamental law. This is not only inconsistent with the basic principle of limited govern. ment, but makes judicial review intolerable in a democratic society. Certainly no society can justly call itself democratic where as few as five appointed justices, who are beyond the control of the people and their elected representatives, can determine the meaning and substance of nearly all the freedoms that the people possess. And certainly, no constitution can be said to be based upon a separation of powers or federalism when one of the branches of the national government is free to usurp the functions of the legislature and the powers of the states.

38 370 U.S. 421 (1962).

38 See W. Sweet, The Story of Religion in America (1950); S. Cobb, The Rise of Religious Liberty in America (1902); I. Cornelison, The Relation of Religion to Civil Government in the United States of America (1895).

40 The phrase is taken from a letter of Jefferson to the Baptist Association of Danbury, Con. necticut, 1802, which reads in part: "I contemplate with sovereign reverence that act of the whole American people, which declared that their legislature should make no law respecting an establishment of religion, or prohibiting the free exercise thereof, thus building a wall of separation between the church and state." As quoted in C. Rice, The Supreme Court and Public Prayer 63 (1964).

si Pennsylvania, 1913. Delaware and Tennessee, 1915: New Jersey, 1916: Alabama, 1919; Geor. gia, 1921. Maine, 1923; Kentucky, 1924: Florida and Idaho, 1925, Arkansas, 1930. A. Johnson and F Yost. Separation of Church and State in the United States 33 (1948).

*2 The Garden and the Wilderness Religion and Government in American Constitutional History 31 (1965). See also E Corwin. A Constitution of Powers in a Secular State (19511; F O'Brien, Justice Reed and the First Amendment (1956).

Jurisdiction-limiting bills, like the Helms Prayer Bill, are clearly consistent with the basic principles of separation of powers and federalism. Moreover, these bills represent a return to an allocation of power consistent with the original intent of the Framers, and are essential to protect the rights of the people. At the very least, the American people, speaking through their representatives in Congress, have the right to decide which government and which courts shall protect their liberties. The exceptions clause of article III of the Constitution gives them that right.

Senator DENTON. At this time, the Chair would call forward the first panel of witnesses: Rabbi Seymour Siegel, with the Jewish Theological Seminary of America; John M. Murphy, a gentleman whom I have met and become friends with over the years-Deputy Supreme Knight, Knights of Columbus; and Robert Dugan, Jr., director, National Association of Evangelicals.

I would start from left to right, and ask you, Rabbi Siegel, if you have an opening statement.



Rabbi SIEGEL. Thank you very much, Senator Denton. Taking the lead from Senator Helms, I will start by saying that I do have a prepared statement, which I have already submitted to the record.

My name is Seymour Siegel. I am an ordained rabbi who now serves as professor of ethics and theology at the Jewish Theological Seminary of America in New York City. I have the honor also to be president of the American Jewish Forum, a group of Jewish citizens dedicated to the furtherance of conservative political principles.

I have come here this morning to speak in the name of a tradition which has valued education and religious worship throughout its long history. The Talmudic rabbis, in a famous statement, affirm that the world stands on three things: The learning and practice of the law; the worship and service of God; and on the doing of deeds of kindness to our fellow men. Indeed, the three are intertwined. An education interfused with reverence for the divine will lead human beings to deal kindly with each other.

It is because of this that I appear before you this morning to support the Senate Joint Resolution 199, which is before this committee, and which seeks to restore the freedom of our citizens to offer prayers in public schools.

An educational institution which neglects training in prayer has overlooked an indispensable aspect of human growth and development. It is because of this that, as far as I know, no educational system until relatively recent times, and I think only limited to this country-has not included religious worship as part of its activities or part of its curricula.

There is a long standing tradition of including some form of public prayer in the public schools ever since the inception of the

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