Even after Madison's draft was changed by congressional committee deliberations, when asked in debate on the House floor what the reworded clause meant, Madison said that he "apprehended the meaning of the words to be that Congress should not establish a religion and enforce the legal observation of it by law.

On the basis of the resolutions passed by the Maryland, Virginia, New York, North Carolina and Rhode Island ratifying conventions, on the basis of the original draft of Madison's religion amendment,5 the debates within the first House and Senate and Madison's final statement on the floor of the first House of Representatives, I conclude that regarding religion, the first amendment was intended to accomplish three purposes.

First, it was intended to prevent the establishment of a national church or religion or the placing of any one religious sect, denomination, or tradition into a preferred legal status which characterized religious establishments.

Second, it was designed to safeguard the right of freedom of conscience in religious beliefs against invasion by the National Government. Third, it was so construed and constructed in order to allow the States, unimpeded, to deal with religious establishments and aid to religious institutions as they saw fit.8

COMPARING THE SUPREME COURT'S ESTABLISHMENT CLAUSE AND THE

HISTORICAL ONE

Despite the fact that the first amendment was added to the Constitution in 1791, it was not until the Everson Bus Transportation case in 1947 that the U.S. Supreme Court comprehensively defined what its doctrine of church-State separation meant.10

In Everson, the Supreme Court ruled essentially that the purpose of the establishment clause was to create a high and impregnable wall between church and state. In that case and since, the opinions of the Court have invariably cited carefully selected historical documents and instances to justify their broad interpretation of the separation of church and state required by the Constitution.

In brief, in all of the major establishment clause cases, for over one-third of a century, the Supreme Court has sought to justify its church-state decisions with appeals to the actions of James Madison, Thomas Jefferson, the Virginia Legislature of 1786, the framers of the first amendment, and the historical events of the early years of the American Federal Republic.11

3 Ibid., Vol. I, p. 730.

* Jonathan Elliott, "Debates on the Federal Constitution," Vol. II (Philadelphia: J.B. Lippincott Co., p. 553; Vol. III, p. 659; Vol. I, p. 328; Vol. I, p. 334; Vol. IV, p. 244.

5 "Annals of the Congress," Vol. I, p. 434.

Robert L. Cord, Chapter One, "Separation of Church and State: Historical Fact and Current Fiction" (New York: Lambeth Press, 1982) and Michael J. Malbin, "Religion and Politics: The Intentions of the Authors of the First Amendment" (Washington, DC: American Enterprise Institute, 1978).

7 Ibid., n. 3, supra

Cord, "Separation, op. cit.," p. 15. Recognizing without approval, that the U.S. Supreme Court has held the prohibitions of the First Amendment applicable to the States through the Fourteenth Amendment Due Process Clause, the still relevant purposes of the religious guarantees of the First Amendment now delimit state as well as Federal authority. 9 Everson v. Bd. of Education, 330 U.S. 1 (1947).

10 Ibid., at pp. 15-16.

11 Representative opinions of the Court to substantiate this statement can be found in Everson v. Bd. of Ed., 330 U.S. 1 (1947); Zorach v. Clauson, 343 U.S. 306 (1952-; McGowan v. Maryland,

Continued

Following the high court's lead, so too have the lower courts of the land. "What does the historical intent behind the establishment clause require us to rule in this case?" seems to be the unuttered question always to be answered by the Court's opinion.

Simply put, the Court has used its "American history" to legitimize its decisions. "Thus saith history" has been the Court's most common and consistent approach in deciding what the establishment clause forbids.

But a careful and not an extremely selective search of American primary historical documents indicates beyond a reasonable doubt that, in fact, no high and impregnable wall between church and state was historically erected by the first amendment, and for a very simple reason: None was constitutionally intended by the framers of that amendment. 12

To be sure, the framers of the first amendment believed in separation of church and state. In 1791, no other country had provided so carefully to prevent the combination of the power of religion with the power of the national government.

However, I believe my recent book shows conclusively that the framers of the establishment clause meant separation between church and state to be something other than what the United States Supreme Court has been saying in most of its decisions for more than three decades. 13

To the contrary, there appears to be no historical evidence that the first amendment was intended to preclude all Federal governmental aid to religion when it was provided on a nondiscriminatory basis. Nor does there appear to be any historical evidence that the first amendment was intended to provide for an absolute separation or independence of religion and the national state. The actions of the early Congresses and Presidents, in fact, suggest quite the opposite.

For a few moments, permit me to contrast the Court's views with fact. Item: in 1971, in Lemon v. Kurtzman, Chief Justice Burger said for the court that, "[W]e have no long history of state aid to church-related educational institutions. .

"14

If the Court believes that, how would it explain the hundreds of thousands of Federal tax dollars spent in support of Indian church schools until Congress altered the policy by statute in 1896? 15

How would the Court explain the fact that during 1824 to 1831, only 7 years, the "Annual Reports of the Commissioner of Indian Affairs" indicate that U.S. tax dollars supported church schools run by the Society of the United Brethren, the American Board of Foreign Missions, the Baptist General Convention, the Hamilton Baptist Missionary Society, the Cumberland Missionary Society, the Synod of South Carolina and Georgia, the United Foreign Missionary Society, the Methodist Episcopal Church, the Western Mis

366 U.S. 420 (1961); Engel v. Vitale, 370 U.S. 421 (1962), 392 U.S. 236 (1963); Bd. of Ed. v. Allen, 392 U.S. 236 (1968); Committee for Public Education and Religious Liberty v. Nyquist, 413 U.S. 756 (1973).

12 See n. 6, supra.

13 Cord, "Separation, op. cit.," Chapter two, three, seven and eight.

14 Lemon v. Kurtzman, 403 U.S. 622 (1971), p. 626.

15 "The Statutes at Large of the United States of America," XXIX (Washington, DC; Government Printing Office, 1897), Fifty-Fourth Congress, Sess. I, Chap. 398, 1896, "Support of Schools", p. 345.

sionary Society, the Catholic Bishop of New Orleans, the Society for Propagating the Gospel Among the Indians, the Society of Jesuits, the Protestant Episcopal Church of New York, the Methodist Society, and the Presbyterian Society for Propagating the Gospel?16

Chief Justice Burger is in error. In fact, the converse is true. We have had a long history of supporting church schools, and that policy was changed not because it was unconstitutional, but because Congress no longer thought it was desirable public policy.

The fact that these schools were almost exclusively Indian schools is constitutionally irrelevant. If the first amendment absolutely forbids the use of tax dollars to support church schools, the race or culture of the pupils attending these schools is not constitutionally important.

Item: attributing to Jefferson and Madison an absolute separationist view, the Court frequently documents its interpretation of those gentlemen with reference to Jefferson's Virginia "Bill for Establishing Religious Freedom.

Madison introduced this bill in 1785 as Jefferson's surrogate,17 and it did become law in 1786 by act of the Virginia State Assembly.18 However, the Court neglects to tell us that on the same day, October 31, 1785, Madison also introduced a bill, again attributed to Jefferson, which severely fined "Sabbath Breakers."19 This, too, became law in 1786.20 Does this Jefferson legislation represent a high and impregnable wall of separation of church and state?

Senator HATCH. Well, does that show how out of step Jefferson was with our modern-day constitutional theories?

Professor CORD. Item: In 1803, as President, Thomas Jefferson submitted to the U.S. Senate a proposed treaty with the Kaskaskia Indians which included a clause pledging the United States to build a Roman Catholic church and providing a yearly stipend for its priest.21 Is this absolute separation of church and state?

After the treaty was ratified, Jefferson asked the Congress to act in its "legislative capacity" to meet the treaty obligations.22 I would like to ask the Supreme Court, when Congress appropriated the U.S. tax dollars to build that Roman Catholic church, did it pass a law respecting an establishment of religion?

Item: Most recently the U.S. Senate and House chaplaincies have been assailed in Federal court as unconstitutional.23 James Madison was one of the six members of the committee of the first Congress which recommended the congressional chaplain system. 24

16 "Annual Reports of the Commissioner of Indian Affairs:" 1824-1831, I (New York: A.M.S. Press, Inc., 1976).

17 Julian P. Boyd, ed., "The Papers of Thomas Jefferson," II, 1777 to June 18, 1779, including. "The Revisal of the Laws, 1776-1786" (Princeton, NJ: Princeton University Press, 1950), p. 307. 18 Ibid., pp. 545-47.

19 Ibid., pp. 555-56.

20 Ibid., see notes, pp. 555-556.

21 Richard Peters, Esq., ed., "The Public Statutes at Large of the United States of America," VII (Boston: Charles C. Little and James Brown, 1848), pp. 78-79. Specifically, see Article Three of the proposed treaty.

22 James D. Richardson, "A Compilation of the Messages and Papers of the Presidents 17891897," I (Washington, DC: Bureau of National Literature and Art, 1901), p. 365.

23 Murray, et al. v. Morton, et al., 505 F. Supp. 144 (1981).

24 Report of the House of Representatives. First sess. of the Thirty-Third Congress, in three vols. (Washington: A.O.P. Nicholson, Printer, 1854), II, House of Representatives Document 124, "Appointment of Chaplains", p. 4.

Their recommendation was adopted and an annual salary of $500 for public prayers in the Congress was provided by the very same Congress which proposed the establishment clause.25 Is this absolute separation of church and state? To advocates of absolute separation, obviously the first Congress did not know what the first amendment, which they authored, meant.

Item: beginning in 1796 and culminating in 1804, the Congress of the United States passed laws which, in effect, paid with enormous land grants in trust an evangelical Christian sect to spread and maintain the gospel among Indians in the Ohio Territory.

One of those laws was signed by George Washington, 27 two by John Adams,26 and the last three by the third President of the United States. In 1802, 1803, and 1804, Thomas Jefferson, who refused to issue Thanksgiving Day proclamations because he thought they were unconstitutional, signed into law congressional enactments providing land for the "Society of the United Brethren for Propagating the Gospel among the Heathen."28

Is this a high and impregnable wall of separation between church and state? Apparently, Jefferson did not think those laws were unconstitutional, or else we are logically forced to believe that he was a rascal, sitting in the White House trying to destroy a principle which he fought so devotedly for-separation of church and state.

No. In my opinion, Jefferson, Madison, Washington, Adams, their Congresses, et al., were not rascals trying to destroy a principle that they themselves had enshrined in the Constitution.

For them, the use of religious or sectarian institutions, including prayers, as means to reach secular ends was not a violation of the first amendment unless, and only unless, preferential treatment was given one church, one religion, or one religious sect, thus elevating it into a preferred legal status.

THE FIRST AMENDMENT TRADITION AND SENATE JOINT RESOLUTION 3

Specifically, how do these principles of church-state separation relate to a prayer amendment? Discussing the Engel prayer case,29 along with Abington 30 and Murray v. Curlett 31 in "Separation of Church and State," I argued that the noncoercive daily recitation of the New York State Regent's prayer did not violate the 1st and 14th amendments, but daily Bible reading and recitation of the "Lord's Prayer" did. 32

For me, the Regent's prayer, which merely addressed itself to "Almighty God," 33 no more placed a particular religion or reli

25 Ibid.

26 "Public Statutes at Large," I, "Acts of the Fourth Congress", Sess. I, Chap. 29, pp. 464-69, approved by President Washington, June 1, 1796.

27 Ibid., "Acts of the Fifth Congress", Sess. III, Chap. 29, pp. 724 approved by President John Adams, March 2, 1799; id., II, "Acts of the Sixth Congress", Sess. I, Chap. 13, pp. 14-16, approved by President John Adams, March 1, 1800.

28 Ibid., II, "Acts of the Seventh Congress", Sess. I, Chap. 30, pp. 155-156, approved by President Jefferson, April 26, 1802; id., II, "Acts of the Seventh Congress, Sess. II, Chap. 30, pp. 236237, approved by President Jefferson, March 3, 1803; id., II, "Acts of the Eighth Congress", Sess. I, Chap. 26, pp. 271-72, approved by President Jefferson, March 19, 1804.

29 370 U.S. 421 (1962).

30 374 U.S. 203 (1963).

31 Ibid.

32 Cord, "Separation, op. cit.," pp. 160-165.

33 Engel v. Vitale, 370 U.S. 421, at 422.

gious tradition into a preferred legal status than did James Madison's four Thanksgiving Day proclamations, replete with their references to the "Great Parent and Sovereign of the Universe," the "Benefactor of Mankind," the "Holy and Omniscient Being," as well as "Almighty God." 34

Dissimilarly, daily Bible reading and/or recitation of the New Testament's Lord's Prayer, in my judgment, elevated the JudeoChristian or Christian religious traditions, respectively, into a legally preferred status forbidden by the first amendment.35

A prayer amendment which is so open-ended as to constitutionally sanction all public school group prayers, even a religiously partisan one, conducted by public schoolteachers clearly departs from our first amendment heritage.

Unlike the prayer in Engel v. Vitale, which simply made reference to "Almighty God," a daily school prayer under the present proposal in Senate Joint Resolution 73 could be addressed to the "Lord Jesus" or the "God of our Fathers, Abraham, Isaac and Jacob." For this reason, the wording of the proposed amendment in Senate Joint Resolution 73 greatly concerns me.

As I said at the outset, I am here to urge that you take care not to violate the historic meaning of the American principle of separation of church and state. If a constitutional amendment merely provided for a moment of silence or a religiously nonpartisan prayer, the spirit of the establishment clause, in my judgment, would not be violated.

Any connection of an exclusive school prayer with a particular religious tradition would put that tradition into a legally preferred position-a happening which I believe the Founding Fathers sought to preclude with the first amendment.

Mr. Chairman and members of the staff, thank you for inviting me to be part of this constitutional process. I would be happy to respond to any questions that you have.

Senator HATCH. Thank you, Professor Cord. In reading your book, I note that there was a definite conflict between the Federalists and the anti-Federalists over States' rights. Could you briefly summarize this conflict for the committee and describe how it led to the wording of the establishment clause as we know it today? Professor CORD. Well, I think there was concern, Mr. Chairman, that the establishment clause would be so worded as to deprive the States of the opportunity of dealing with religious establishments and religious institutions as they saw fit.

There was also a general feeling and debate about the notion that an establishment clause was really not necessary because the Federal Government was one of delegated powers, and no powers involving religion had been delegated to the Federal Government. Therefore, there was no need to put a prohibition on the actions of the Federal Government in the Bill of Rights. There was some concern about that.

At the time of the debate regarding the first Thanksgiving Day proclamation, there was debate in the Congress not over whether

"See President Madison's proclamations of 1812, 1813, and 1814 as reprinted in Cord, "Separation, op. cit., " pp. 257-260. 35 See n. 32, supra.