Senator HATCH. And one of the major reasons they came was so they could worship freely and maintain the religious values they wanted to in a free land.

Mr. SCHMULTS. Yes, sir.

Senator HATCH. Thank you, Mr. Chairman. I appreciate your letting me ask questions out-of-turn.

The CHAIRMAN. Thank you.

Mr. Schmults, the Supreme Court has established in this country, a wall of separation, complete neutrality, in matters dealing with government involvement with religion. Mr. Schmults, how do you interpret the original intent of the framers of the Constitution. and the Bill of Rights in relation to the separation of church and state, and in what ways does your interpretation differ from that of the Supreme Court?

Mr SCHMULTS. Well, first of all, the phrase, "wall of separation," appears nowhere in the Constitution. I would agree with Senator Hatfield when he said that the current position that State and local governments have to assume, as a result of the Supreme Court decisions, is not really one of neutrality, but really, one that borders close to hostility.

So I think it is clear that the framers, while they intended that Congress not establish a national religion, certainly did not intend to banish religion from our public institutions and public ceremonies and institutions. Accordingly, the President's amendment would restore the status of school prayer in public schools to that which our founders, the framers of our Constitution, envisioned. Certainly and I return to this point time and time again—that is the way it existed for 170 years in this country. Those people who devised the Constitution and the early interpreters of the Constitution certainly did not envision that school prayer had to be banned from our public schools.

The CHAIRMAN. In fact, wasn't one of the main reasons, if not the chief reason, that people came to this country to seek religious freedom?

Mr. SCHMULTS. Yes, sir

The CHAIRMAN. And for how many years did we allow prayers in schools before the Supreme Court declared it unconstitutional? Mr. SCHMULTS. I think over 170 years.

The CHAIRMAN. Over 170 years. Isn't it kind of strange that it took the Supreme Court that long to decide we could not have prayers in schools?

Mr. SCHMULTS. Yes.

The CHAIRMAN. Do you feel that school prayer can be carried out with discriminating against any one religion, and do you feel that this nondiscriminatory school prayer will have associated positive effects, even secular positive effects, on our young and the country in general?

Mr. SCHMULTS. The answer to both questions is yes. The President's proposal very carefully states that neither the United States, nor any State, can compel any person in any way, shape, or form to participate in prayer. There is the freedom to do so or not to do so. I think what we have seen is the alleged rights of the minority here overwhelming the rights of the majority. I think those who want to pray in public schools should have the right to do so, and

those who do not wish to do so should not have to participate. The President's amendment would make clear there could be no compulsion or any requirement whatsoever. It would protect that absoÎutely. Indeed, we think it is already protected under the Constitution, but we have made that clear in the amendment.

The CHAIRMAN. The President's recommendation is clear that it would only be those who volunteered to pray, and no one would be compelled to; isn't that correct?

Mr. SCHMULTS. That is correct.

The CHAIRMAN. Mr. Schmults, do you see Senate Joint Resolution 73-the President's recommendation-as a clarifying amendment to the Constitution, or feel it will add additional language and intent to the Constitution?

Mr. SCHMULTS. Well, my answer to that would be that we think the amendment would restore the constitutional doctrine in this area to what the framers intended and the way it existed for 170 years and, hence, is desirable. And we certainly see nothing wrong. There is a criticism being leveled that, somehow, there will be State compulsory prayer. That is not right. People, schoolchildren, will have the freedom not to participate, and we believe that we can trust the people in this country, the local parent-teacher associations, student groups and others, to devise, if they wish-no one is required to do so-a form of prayer that would best suit the local community and the local school. We see that as something desirable, not having the Federal courts and the Federal Government tell our people what to do about their prayers.

The CHAIRMAN. At what level of government do you foresee school prayer policies being made if Senate Joint Resolution 73 becomes part of the Constitution?

Mr. SCHMULTS. Well, we think it would be made at the lowest level of government-each community, each town, each classroom perhaps. It could be devised in any one of a number of ways. Or, there could be no prayer. If a State wished to bar prayer from the public schools, of course, it could do so. We would leave it to those at the lowest level. And certainly, our traditions indicate that we are safe in doing that. Our history in this country has been one of great toleration for religious diversity. This amendment would return this power to the people, if you will, that the Federal courts took away in the 1960's, in a way we believe contrary to the spirit of the framers of the Constitution. We see that as a desirable thing to do, Mr. Chairman.

The CHAIRMAN. Mr. Schmults, what effects do you feel this amendment will have on other rulings by the courts on religious matters such as Bible reading, equal access, observance of religious holidays, and so forth?

Mr. SCHMULTS. Well, that is hard to predict, and therefore I will not make a prediction. At the Justice Department, we believe there is some reason to hope that the "equal access" concept will be one that will find its way into a constitutional doctrine, and we are hopeful that the courts will rule that way.

Senator Hatfield mentioned a recent case in the middle district of Pennsylvania, involving a high school that went along the same lines as the Supreme Court's Widmar case on equal access. But my suspicion that if this amendment were passed and put in

the Constitution, it would certainly be helpful in these other areas, as well.

The CHAIRMAN. Mr. Schmults, how do you perceive the free exercise provision of this amendment? It reads: "No person shall be required by the United States or any State to participate in prayer being carried out."

Mr. SCHMULTS. Well, we think that is an ironclad guarantee of, really, religious freedom, or the freedom not to participate in prayer. That guarantee is undoubtedly in the Constitution already, but we thought that it would be desirable to include that specifically in the proposed amendment, so that it is an integral whole.

The CHAIRMAN. Mr. Schmults, several bills, I believe, have been filed on the equal access question before this committee and also, the Labor Committee. Which, if any, of those do you favor?

Mr. SCHMULTS. Well, the President has endorsed the concept of those bills. Secretary Bell has testified in favor of them. We believe that, if carefully drafted, there is an excellent chance that the courts would hold them constitutional.

I am not prepared to state at this time which particular bill we favor, but we do favor that concept. And indeed, we think legislation along this line would be more desirable now than a constitutional amendment along the same line. As Senator Hatch indicated earlier, our position-and we believe that it is the correct one-is that, at best, it is premature to address this issue now, because we think there is a reasonably good chance that the courts will hold that equal access is constitutional.

The CHAIRMAN. Has the Justice Department recommended a particular access amendment, statutory?

Mr. SCHMULTS. No, we have not, but we are certainly happy to work with the committees who are considering this to develop a bill.

The CHAIRMAN. Would you have someone in the Justice Department, then, to work closely with staff of the Judiciary Committee on that question?

Mr. SCHMULTS. Yes, sir, we would be glad to do that.

The CHAIRMAN. Thank you very much, Mr. Schmults, for your presence here.

Mr. SCHMULTS. Thank you, Mr. Chairman.

The CHAIRMAN. Our first panel today will be Prof. Robert Cord and Prof. Walter Dellinger.

We will now be pleased to hear from Prof. Robert L. Cord. Professor Cord is professor of political science at Northeastern University. He received his Ph.D. from the Maxwell School of Citizenship and Public Affairs, Syracuse University, and was a liberal arts fellow in law and political science at the Harvard School of Law.

Also appearing at this time is Prof. Walter E. Dellinger. He is an undergraduate of the University of North Carolina, and he received his bachelor of law from Yale University. He is currently professor of law at the Duke University School of Law.

We are very pleased to have you gentlemen with us, and you may proceed now.

STATEMENT OF A PANEL, INCLUDING ROBERT L. CORD, PROFESSOR OF POLITICAL SCIENCE, NORTHEASTERN UNIVERSITY, BOSTON, MA; AND WALTER E. DELLINGER, PROFESSOR OF LAW, DUKE UNIVERSITY

Professor CORD. Thank you, Mr. Chairman.

Mr. Chairman, members of the committee, and committee staff, as I did 2 months ago, I have accepted your invitation to testify before this committee about my research and my understanding of the American constitutional doctrine of separation of church and state.

It is my firm conviction that the administration's proposal, Senate Joint Resolution 73, would violate the church-state tradition that our Founding Fathers established, but that the Hatch subcommittee proposal would not. Documentation for my conclusions may be found in my most recent book, "Separation of Church and State, Historical Fact and Current Fiction," published by Lambeth Press of New York, 1982.

When I was before the subcommittee in April, I stressed that I have not accepted your invitation to argue as a partisan for or against the prayer amendment. Then, as now, I have come here to testify about my views of the historical first amendment guarantees and how they relate to the two proposed prayer amendments, Senate Joint Resolution 73, the administration's amendment, and the subcommittee's silent meditation alternative, the Hatch amendment, both of which may be voted out by this committee and therefore may reach the Senate floor.

Once again, I urge you not to support any amendment that would compromise the principles of church/state separation which the Founding Fathers of our Constitution and its first amendment so wisely embraced.

Recognizing that an amendment to our Constitution is, by definition, constitutional, I ask you not to send to the Senate any proposal which is out of harmony with either the letter or spirit of the first amendment. Additionally, I have come here to suggest that any amendment you may choose to report out should be one that strengthens those first amendment rights which in recent years have been diluted, if not denied, in the judicial process.

Not wishing to reiterate too much of what I said on April 29, I do think it desirable to reiterate some fundamental points made therein.

First, the Founding Fathers believed in separation of church and state. In my judgment, their commitment to that concept was the most distinctive contribution that the American constitutional system made to the body of political ideas and institutions.

Contrary to Senator Metzenbaum's view of what they thought, what the framers thought separation of church and state was designed to do, with the use of mostly primary historical documents, I think I show conclusively that the framers did not believe in an absolute separation, nor even a high and impregnable wall between church and state, as declared by the U.S. Supreme Court in the Everson bus transportation case of 1947 and its progeny. Instead, the documented public actions of the framers of the first amendment, including mes Madison, and those of our early Presidents

and Congresses, establish that the constitutional doctrine of separation of church and state to them meant that no national religion was to be instituted by the Federal Government, nor was any religion, religious sect, or religious tradition to be placed in a legally preferred position. It is not surprising, then, that the nondiscriminatory use by Government of religious institutions such as schools to accomplish goals within the Government's authority was not considered by the Founding Fathers a violation of the Constitution. No matter what the Supreme Court and some prominent constitutional scholars have written, the facts show that Washington, John Adams, Jefferson, Madison, and their Congresses all used, in one way or another, what they viewed as nonpreferential sectarian means to reach secular governmental ends.

Because I believe there is a clear nationwide consensus that the power to establish a national church or religion was explicitly denied the Federal Government by the first amendment, I see no need to discuss that here. However, because of the wording of the Administration's proposed amendment, Senate Joint Resolution 73, I see a definite need to address the nonpreferential religious treatment that the framers of the first amendment endorsed.

Seen in its proper historical context, what became the first amendment's establishment clause was in part a response to "no preference" resolutions emanating from several State constitutional ratifying conventions. The Virginia Ratifying Convention proposed a "Declaration or Bill of Rights" as amendments to the Constitution, of which article XX in part stated that, "* no particular sect or society ought to be favored or established, by law, in preference to others."

* *

The New York Convention similarly declared "*** that no religious sect or society ought to be favored or established by law in preference to others."

The conventions in North Carolina and Rhode Island passed similar resolutions.

My opposition to the administration's proposed amendment is at least threefold. First, it will create the environment that provides for violations of the "no official religious preference" concept, which the Founding Fathers believed was the essential ingredient of the "establishment" clause.

Senate Joint Resolution 73 is so overbroad that it provides a constitutional imprimatur for all prayers said in public schools. On its face, Senate Joint Resolution 73 excludes no prayer. Consequently, prayers that are exclusively Christian, exclusively Jewish, exclusively Islamic, exclusively Buddhist, et cetera, would be constitutional even though they placed one religion or religious tradition into a preferred legal status. Religiously partisan prayers are certain to be written in some of this Nation's thousands of schools or school systems.

Second, as written under the administration's wording, either all voluntary prayers are constitutional, or the subject of what is appropriate prayer under the new amendment will be passed on to the courts-a happening which this amendment is, among other things, supposed to curtail.

Third, Senate Joint Resolution 73 confines itself, if at all, to reversing only the most obvious dangers to our first amendment lib

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