The principle enunciated by the Court in this opinion is eminently sound. It reiterates the deeply cherished American principle of the separation of church and state. As Justice Black correctly notes: "*** In this country it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by government." IS THE COURT WRONG? Is the Court wrong? If so, then must we not concede that government officials do have authority to compose prayers and require their repetition? If we concede them that authority, does it not follow that we must be prepared to accept the kind of prayers they may formulate? What is to prevent them or their successors from prescribing a kind of prayer which, while highly pleasing to a large segment of the population, would be offensive to other groups? We repeat that if these officials are in their proper function when they formulate and require prayers, then the public will be stuck with the particular prayers which they formulate and require. What resentment and bedlam await to be unleashed? A careful analysis of the regents' prayer would probably indicate that no religious group could be entirely satisfied with it. Prayers composed by politicians and governments have never been satisfactory to deeply religious people. Christians are not offended by this prayer, but they do not find it satisfying because it contains no mention of Christ. Members of other faiths are, likewise, not offended. But they are no better satisfied with it. What is the regents' prayer, basically? It is an empty salute to religion, a gesture which falsely parades as something real. The regents' prayer achieves acceptability of being vapid. A truly religious person ought not to lament its passing. The regents' prayer and the public school religion of which it is an example are a religion of the least common denominator. This is the standard brand of religion that public officials could be counted on to provide if this matter were placed in their domain. The objection to their product is not that it is too religious but that it is not religious enough. We are not convinced that there has been such a collapse of the church and the home as to necessitate a transfer of religious responsibility to public officials. The fact that such a transfer has been seriously proposed and urged, and to some extent accepted, is in itself a symptom of spiritual sickness which only a genuine spiritual revival can cure. Surely government intervention is not the answer here. The state's edict cannot produce the sincere seeker and the contrite heart. BLOW TO TOTALITARIANISM The Court's decision is a blow to the totalitarian concept of government. There are those among us who want government to take over everything. Now this thinking invades the most intimate and personal realm known to man—that of religious experience. Public school children in New York State have been, in effect, required by law to pray and have been regimented in their prayers. To establish such a religious exercise upon these citizens is an unconstitutional use of governmental authority. So the Supreme Court has wisely held. The decisive point of difference between a free government and a Communist or Fascist government is this that the free government does not try to run everything. Certain matters are deliberately left to the personal conscience and decision of the people themselves. Religion is eminently one of these matters and the Supreme Court has now enabled us to keep it so. HOLDING THE MONEY LINE Believers in church-state separation will be heartened by this decision in their endeavor to hold the "money line" between state and church. Those who had hoped to advance public money for parochial schools by legislating a government-composed prayer will be disappointed. The attempt failed. Justice Black, speaking for the Court, gives every evidence not of relaxing but rather of tightening the ban on state aid to church institutions which he has repeatedly asserted in other opinions. This matter receives even sharper articulation in the concurring opinion of Justice Douglas which stresses the unconstitutionality of money involvement between state and church. It is the expenditure of public funds to support a religious exercise, he declares, which provides the decisive constitutional test. If the miniscule expenditure of public funds involved in the preparation and implementation of the regents' prayer renders this program unconstitutional, then surely the channeling of many millions of dollars of public funds into church schools would be unconstitutional as well. We come now to the question of a constitutional amendment which would have the effect of giving public officials certain authority in the religious field which the Court has now held they lack. Focusing our attention on the specific issue here, we may say that the proposed amendment would be designed to give the New York authorities in question authority to compose prayers and impose them upon schoolchildren. We wish to register our opposition to any such amendment which might well open the door to further government intrusions in this area. We believe we speak for millions of our people and for a respected tradition of this country when we respectfully say to our Government: "The realm of religious experience is personal and private; please keep out." Dr. Louie D. Newton, President, POAU, Pastor, Druid Hills Baptist DORAN, MANION, BOYNTON & KAMM, Hon. JAMES O. EASTLAND, Senate Office Building, Washington, D.C. DEAR SENATOR: I hope that it is not too late to bring the enclosed broadcast into the record of your hearings on the proposed constitutional amendment to correct the Supreme Court's recent "no prayer" decision. It can be conclusively shown, I think, that Justice Black's persistent declaration that the 14th amendment embraces the 1st is unsupported sophistry which perverts both American law and American history. There was not enough time in which to document this thesis completely in the enclosed broadcast but I think I have made the point which should not be overlooked in your discussion about the amendment. It seems to me that, as I have suggested, a more appropriate and immediately possible remedy would be to curtail the appellate jurisdiction of the Supreme Court as Senator Jenner tried to do a few years ago. With personal regards, I am, Cordially yours, MUST GOD GET OUT OF OUR GOVERNMENT (By Dean Clarence E. Manion) CLARENCE MANION. When the Supreme Court decided to take God out of the Government last June 25, I was tempted to have my say then and there-along with those thousands of other people, great and small, who expressed themselves at once. Now I am glad I waited until all or nearly all of the votes have been counted for and against the Court's startling conclusion. Immediately after the decision was announced, the President of the United States told us to respect it and be glad that we can still pray in our homes. None of the newspaper reporters who were present made the obvious retort, namely, that Khrushchev could have said the same thing to the Russians, to the Poles, or to the Hungarians. After all, cannot Cardinal Mindszenty still pray in the cubicle of the American Embassy in Budapest, where he has been confined for 6 years in protection against the Communist government? The popular reaction to this unfortunate Supreme Court decision was like that of children who have just been told by the sad and wise old family doctor that their mother has cancer: "I am so very sorry, my dears, but it is so; all of the scientific tests prove it." The Supreme Court was like that in its decision and the American people were like sad and simple children in their reaction to it. What can the American people know about their Constitution? Theirs is not to reason why; theirs is but to listen to the bad news from the expertsthe Supreme Court. And so, school superintendents all over the country sorrowfully but nevertheless seriously, announced plans to reconsider time-honored customs such as invocations at high school football banquets, salutes to the flag (and, therefore, to God) at their morning convocations, and nondenominational sermons to their graduating classes on baccalaureate Sunday. Recently someone published a book called "A Nation of Sheep." I have read only the title, but I know now that the author is referring to the people of the United States. Our reaction to this Supreme Court decision indicates that his conclusion is correct. We have permitted the Federal Government to shear us to the skin and we are ready to respond, like sheep, when a Judas goat-in this case the Supreme Court-leads us up for the slaughter of our spiritual and constitutional heritage. The decision brought a deluge of editorial criticism, of course, but for the most part the editorials ended up like this one: "Those of us who believe the ruling of the Court to be in error will, nevertheless, obey this decision since ours is a government of laws." When we all slavishly obey a Court decision that we know to be in error, we destroy our Government of liberty-protecting laws and substitute a government by arbitrary decree. A Court decision is not the law of the land; it is merely the law of the particular case in which the decision was rendered and, of course, the parties to that lawsuit will be forced to observe it unless and until they can get the decision reversed. But when the decision obviously is in error, and particularly on a subject that is as vital to our civilization as the relationship of Almighty God to the Government of the United States, then all Americans who respect the great Author of liberty are under a moral and patriotic obligation to blast the decision for the error that it is, and for what one Justice of the Supreme Court itself declared it to be, namely, "a misapplication of a great constitutional principle" and an attempt to divorce our constitutional government from its official historic "reliance on the protection of divine providence." The decision of the Court as read by Justice Black is unsupported by any judicial precedents except those that Justice Black himself has made out of legal whole cloth during his long tenure on the Supreme Court. I saw this error coming up 14 years ago and addressed myself to it then in a carefully documented criticism of one of Justice Black's 1948 opinions which now turns out to be a part of his foundation for this climactic sophistry ("The Church, the State, and Mrs. McCollum," Notre Dame Lawyer, vol. 23, p. 456). The entire case made by Justice Black and his concurring colleagues against the New York Board of Education in the June 25 decision is based upon the gratuitous assumption that the first amendment to the Constitution which says, "Congress shall make no law respecting an establishment of religion" must now be taken to read: "No State or any subdivision or agency of a State (such as a local school board) shall make any law or rule respecting an establishment of religion." How does it happen that a plain constitutional prohibition against congressional action now turns out to be a prohibition against State action through the regulation of a local school board? By whose authority is the unmistakable language of the first amendment thus turned around and transformed? The answer is that the language has been changed by the repetitious insistence of Justice Black that the 1st amendment which was added to the Constitution in 1791, was made operative against the States by the adoption of the 14th amendment which was added to the Constitution 77 years later, namely, in 1868. Remember, please, that for 69 years before Justice Black became a member of it, the Supreme Court in a great number of cases had construed the 1st amendment and the 14th amendment, respectively, as entirely separate and unrelated provisions of the Constitution. These repetitious constructions were in complete harmony with historical facts. When the 14th amendment was ratified its authors and proponents had no idea that it would ever be construed to bring the provisions of the 1st amendment into operation against State governments. On the contrary, in 1876, 8 years after the 14th amendment had been adopted, a new constitutional amendment was proposed in Congress which read, in part, as follows: "No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof." This proposed amendment was voted upon in the U.S. Senate on August 14, 1876, and the proposal failed because it did not receive the necessary two-thirds majority. If the 14th amendment embraced the 1st amendment when it was adopted in 1868, as Justice Black says it did, why did Congress feel it necessary in 1876 to attempt to adopt another amendment specifically restricting the States in the terms that had been used to restrict Congress in the 1st amendment? Since this specific prohibition against State-established religions was expressly rejected by Congress in 1876, by what authority does Justice Black now assume to add such a prohibition to the Constitution in 1962? Justice Black does not cite any authority for this revolutionary transformation of the English language and of American history except his own judicial opinions. The "wall of separation between church and state," to which Jefferson referred in a private letter written in 1802, has become an obsession with Justice Black, but he conveniently ignores what Jefferson said publicly 3 years later in his second inaugural address, namely: "In matters of religion I have considered that its free exercise is placed by the Constitution independent of the powers of the General (Federal) Government. Jefferson realized that large areas of American life were expressly made independent of the powers of the Federal Government by the language of the 10th amendment and that religion was merely one of these areas deliberately reserved for the exclusive operation of States rights. Justice Black and most of the Justices associated with him on the Supreme Bench during the past 25 years, have been so preoccupied with the 1st amendment, the 5th amendment, and the 14th amendment-that they have never been able to consider the equally valid import of the 9th and 10th amendments which protect the immunities of the States and of the people in the States against the intrusion of unlawful Federal action. Pursuant to the rulings of Justice Black and his associates, Federal judges are now taking over the constitutional duties of State legislatures in the field of reapportionment of representatives (Baker v. Carr, 82 S.C.). The constitution of Maryland provides that Maryland officeholders shall declare their belief in the existence of God, but that constitutional provision was swept aside last year by Justice Black's Supreme Court opinion that the 1st and the 14th amendments will no longer permit the State to protect itself in this respect (Torcaso v. Watkins, 81 S.C.). It so happens that the constitution of the State of Maryland like that of New York begins with an expression of thanks for God's blessings, followed by an invocation of His continued protection; but all this will soon be changed by the Supreme Court under Justice Black's influence, and Justice Douglas, in his separate concurring opinion in the New York school case, confidently predicts that the change is coming. If this Court has its way, God must get out of government-State and Federal. As a byproduct of this Court-made law, the States will have to disappear as selfgoverning units of our constitutionally established Federal system and become mere administrative agencies of the tightly centralized, absolute authority in Washington. A constitutional amendment is now being considered to remedy the situation created by the Court's decision in the New York school case, but constitutional amendments cannot be proposed and ratified fast enough to protect the Constitution from the kind of a Supreme Court that we have now. Its decisions have destroyed more established legal precedents in the last 20 years than were accomplished in the previous 133 years of Supreme Court history. What this Court will do next is anybody's guess. The appellate jurisdiction of the Supreme Court is determined by Congress. Article III, section 2, of the Constitution of the United States empowers Congress to regulate and limit the questions of law and fact that may be appealed to the Supreme Court from State and inferior Federal courts. Using this author ity, Congress should withdraw all appellate jurisdiction from this Supreme Court now and thus leave final determination of constitutional questions with State courts and Federal circuit courts of appeal. Unless this is done, and done quickly, the Supreme Court as presently constituted will make a shambles of our republican form of government. If this Nation under God is to have a new birth of freedom, then it is up to Congress to get the present Supreme Court out of the delivery room. Hon. JAMES O. EASTLAND, Chairman, Committee on the Judiciary, U.S. Senate, Washington, D.C. GAITHERSBURG, MD., November 14, 1962. DEAR SENATOR EASTLAND: I appreciate the opportunity of preparing a statement for the Committee on the Judiciary in connection with proposed resolutions concerning prayer in public schools. The enclosed paper on "Prayer, the 14th Amendment, and American Constitutional Ideals" I hope provides helpful research for your committee. As the present school prayer controversy is closely related to the 14th amendment, the entire situation in my opinion is related to the history of reconstruction and the ideals for which Abraham Lincoln gave his life nearly a century ago. As the school prayer question is at heart a matter of ideals, I believe the basic solution lies in restoring the balance of power in our federal system of government. This could be implemented through two amendments to the Constitution, adding the words "so help me God" to the President's oath of office, and resubmitting the 14th amendment to the States for ratification. If the 14th amendment were not ratified, all those cases based upon the 14th would automatically be subject to revision, namely the decision on Engel v. Vitale, and also Brown v. Board of Education of Topeka. Thank you again for the opportunity you extended. Sincerely yours, RUFUS WEBB. PRAYER, THE 14TH AMENDMENT, AND AMERICAN CONSTITUTIONAL IDEALS In times of national crisis, the American people elevate to leadership reverent and patriotic men, statesmen who inspire that devotion to duty and dedication to ideals that preserve a nation. Wars and alarms bring to each home and heart the reminder that America exists today because in the past other Americans were willing to pay the supreme sacrifice. The ceremonies of Veterans' Day evoke humility and thanksgiving for the blessings that Almighty God has continually bestowed upon America. What price did our forefathers pay to bring forth on this continent a new nation conceived in liberty and dedicated to the proposition that all men are created equal? How heavy was the burden that Gen. George Washington carried, a burden which forced him to his knees in the snow at Valley Forge in the dark winter of 1777-78? We do not know the specific request Washington made in seeking Divine protection for America's cause, but we do know his thankful and reverent comments to the Governors of the States, upon disbanding the Continental Army in 1783: "I now make it my earnest prayer that God would have you and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of obedience to government, to entertain a brotherly affection and love for one another, for their fellow citizens of the United States at large, and particularly for their brethren who have served in the field; and, finally, that he would be most graciously pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacific temper of mind, which were the characteristics of the Divine Author of our blessed religion." Every American schoolchild knows the story of George Washington and the cherry tree, and perhaps most are familiar with, and even inspired by the picture of the Father of their Country on his knees praying at Valley Forge. As children seek to emulate great men, heroes, and great Presidents, it is only natural for American schoolchildren to follow their elders and pray for their 92395 63 -16 |