From the beginning, America has been a profoundly religious nation with a tradition of publicly declaring and encouraging a belief in and dependence upon God; and from the beginning, education was treated as an enterprise with inseparable religious and moral components. To the Founders, a wholly secular education would have been a contradiction in terms, a certain blueprint for disaster.

The President's amendment would enable students the opportunity to exercise their Constitutional right of freedom of speech. I hope that this distinguished committee will rule promptly and favorably on this matter and by so doing reflect the will of the people of this Nation.

Thank you.

Senator HATCH. Our next witness will be Michael Malbin from the American Enterprise Institute. He is also a contributing editor of the National Journal. Dr. Malbin is one of the leading authorities on the constitutional development of the first amendment and is the author of a number of monographs on the subject published by the American Enterprise Institute. He is also a lecturer at Catholic University.

I noticed in particular two excellent monographs, Dr. Malbin, Religion and Politics: The Intentions of the Authors of the First Amendment; and, Religion, Liberty, and Law and the American Founding.

So we appreciate having you with us. We look forward to taking your testimony at this time.

STATEMENT OF MICHAEL J. MALBIN, RESIDENT FELLOW,
AMERICAN ENTERPRISE INSTITUTE

Mr. MALBIN. Mr. Chairman, thank you.

As you have indicated, I am a political scientist at the American Enterprise Institute for Public Policy Research where I am a resident fellow.

I appreciate your asking me to testify here today on what the members of the First Congress intended the establishment clause to mean and the implications of that meaning for contemporary concerns about school prayer and other issues.

What I have to say will be my own opinions, based on my own published investigation of the historical record. As you know, AEI takes no organizational positions on matters of public policy, and on this subject as on many others, there is a wide diversity of opinion at the institute.

Mr. Chairman and Senator Grassley, I know your time is limited. I will summarize my historical research briefly, and to support

what I say, I request the two items you mentioned be inserted in the record or submitted for the record, as well as a chapter called "Religion and the Founding Principle," from Walter Berns' book, "The First Amendment and the Future of American Democracy.' Senator HATCH. Without objection, they will be inserted into the record after your oral statement.

ORIGINAL INTENTIONS

Mr. MALBIN. The Supreme Court has held since 1947 that the first amendment's establishment clause applies to the States as well as Congress, and that it prohibits both State and Federal law from giving direct or indirect assistance to religion.

The law, according to the court, must be strictly neutral between religious and secular institutions and activities. The Supreme Court asserted in Everson, Engel, and Schempp that its neutrality test was based on the intentions of the authors of the first amendment.

As evidence, it drew upon a phrase, "wall of separation," from a private letter written by Thomas Jefferson in 1802, and some statements Jefferson and Madison made in support of the 1784 Virginia Bill for Establishing Religious Freedom. But Jefferson was not even a member of the First Congress. Madison was the floor manager for the amendments, to be sure, but one should not interpret the result of a collective deliberation solely from statements made by a floor manager in an entirely different setting 5 years before, particularly not when we have better records available in the "Annals of Congress.'

The debates over the Bill of Rights in the "Annals" are less complete than we might wish, but there was more discussion of the establishment clause than of most of the other proposed amendments. Although the debate left many questions unsettled, it was clear on some key points.

Madison thought the Bill of Rights was not necessary given his views on enumerated powers and his views on the necessary and proper clause. The best protection, he thought, against a national religious establishment, or against all forms of majority tyranny, was an extended republic that was friendly to and fostered a multiplicity of sects, opinions, and interests.

Nevertheless, to respond to concerns raised during ratification, he agreed to sponsor a set of amendments in the First Congress. One of them read, "No religion shall be established by law." It was interpreted by Madison to mean, "that Congress should not establish a religion." Please note that Madison said Congress should not establish a religion, not that Congress should not establish religion as such.

But Madison's interpretation did not match his own original language. This led members of Congress to express two different kinds of concerns. One, to quote Benjamin Huntington, was "that the words might be taken with such latitude as to be extremely hurtful to the cause of religion."

The other was that the amendment might permit Congress to pass laws that would threaten religious establishments in the States. Various formulas were offered to deal with both issues.

Some would have limited the amendment to the establishment of articles of faith, but that did not satisfy members who were concerned about other less discriminatory issues.

would

Another formula-and this one was adopted temporarily have prohibited any law touching religion. That formula would satisfy today's most extreme separationists at the national level, but it also would have barred any law that even indirectly affected establishments in the States.

The final language compromised both issues: Laws touching religion were allowed, but not ones directly "respecting an establishment of religion" in the States. At the same time, the language prohibited Federal laws that favored one religion or group of religions over others. Again, note the phrase, "respecting an establishment of religion," rather than "the establishment of religion."

But the language did not prohibit laws that might tend to assist religion as such. The First Congress did not expect the Bill of Rights to be inconsistent with the Northwest Ordinance of 1787, which the Congress re-enacted in 1789. One key clause in the ordinance read as follows: "Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of learning should forever be encouraged." This clause clearly implied that schools, which were to be built on Federal lands with Federal assistance, were expected to promote religion as well as morality. In fact, most schools at this time were church-run, sectarian schools. However, the aid was open to any sect that applied.

In summarizing the history, I should like to emphasize the broad area of agreement between Madison and others in the First Congress; they all wanted religion to flourish, but they all wanted a secular government. They all thought a multiplicity of sects would help prevent domination by any one sect and thus help avoid the religious divisiveness and religious warefare with which they were all so familiar from recent English history. We should not lose sight of the importance of this concern about divisiveness to the framers as we seek to correct recent misinterpretations of their intent.

At the same time as they were concerned about divisiveness, however, most members of the First Congress also thought religion was useful, perhaps even necessary for teaching morality. Most also thought a free republic needed citizens who had a moral education. They thus tended to view nondiscriminatory aid to religion not as a policy designed to achieve religious objectives, but as one, to use the current language, "with a secular purpose and effect.'

CONTEMPORARY IMPLICATION

What does this all mean for contemporary deliberation? Obviously, the intentions of the framers cannot be binding upon you. The amending power specifically grants you the authority to make your own determinations.

On the other hand, I personally believe the framers' intentions offer more than historical guidance. I believe their principles were wise and remain so today.

Secretary BELL. I would say, Senator, that we would be even more ecumenical than you are. An astute student and school principal would have diverse groups with diverse views. I have noticed at commencement exercises where those that dare still have prayer; they make sure that they have the balance there.

Now, out in my home country-I happen to be a Mormon and I live in Utah where the dominant religion is the Mormon religion. There is great care that a rabbi or a priest or a Presbyterian minister or some other religious affiliation is asked to be there to offer one of the two prayers so that we have some other views expressed. And I would say that is even more diverse than you have in the Senate where you have a Senate Chaplain who constantly offers all of your prayers.

The CHAIRMAN. Dr. Bell, what was the experience of this Nation prior to Engel and Abington with regard to the efficacy of school prayer? Did we find the horror stories that opponents of prayer assure us will take place if we pass this amendment?

Secretary BELL. We surely did not; my experience goes back quite a few years, you can tell, Senator, from looking at this white hair. And I have been in the school business for a long time. And I felt that the Senate proceeded to fix something that did not need fixing at that time.

Now, I would say, Senator Thurmond, that there have been cases where a prescribed prayer was written out and a student was asked to read that prayer off the card. And that may be offensive to many. And in my opinion that goes too far. As I understand it, at one time New York State had a prescribed prayer.

And so I suppose that that may have been the other extreme. But surely we have not had the problems and the horrendous situations of imposing religion upon students in our schools.

The CHAIRMAN. Admittedly, moral training is the principal responsibility of the home and church. I think no one disputes that. What happens, however, when parents fail to do this? Is it wrong to have the school serve as a safety valve in this regard? And do you see any correlation between the increasing prevalence of juvenile crime and drug abuse and other juvenile problems with a declining level of moral training of young people?

Secretary BELL. Well, I just do not think that we can avoid offering moral instruction in our schools. I submit that it is done every day. It is done when we teach our history, when we teach the Bill of Rights, when we teach about the civil rights laws and the equality of opportunity, and the great ideals of this country.

And surely as you teach about some of the great people and some of the great scoundrels in our history, you are either directly or indirectly teaching morality and character and you are inculcating values. And so those that say we ought to be value neutral in the schools, I do not think that they have really thought that through. There is no way to be neutral on many values, and you cannot teach without teaching some values or some kind or another.

The CHAIRMAN. Is it not true that at every inauguration from George Washington down through Ronald Reagan that we had prayers at the beginning of the exercises?

Secretary BELL. Yes. It is my understanding that that has been traditional and has been practiced by every inauguration.

The CHAIRMAN. In other words, really, did not our forefathers come to this country seeking religious freedom?

Secretary BELL. They surely did. And it is replete in our history. It is just throughout our history and throughout all of our traditions.

The CHAIRMAN. Well, to deny the children the right to pray in schools, is that not denying them religious freedom?

Secretary BELL. In my opinion, the current position is an antreligion position. And if we are going to be neutral about religion, we surely have got to change the status quo because it is not neutral; it is antireligion. And if we are going to be teaching tolerance and diverse views and permitting others to have the same rights that you have in the Senate, as you have just indicated, we surely need to amend the Constitution because of what the Supreme Court has done to it.

The CHAIRMAN. Dr. Bell, what is your view on the Lubbock decision and its rejection of the so-called equal access concept in which extracurricular, nonreligious activities are acceptable and extracurricular religious activities are not?

Secretary BELL. I think that groups that want to get together and discuss ideas and study religious writings ought to be permitted to do that just as other groups are permitted to do that on an extracurricular activity basis. I would not favor sectarian instruction in the curriculum, as such, but I would surely favor extracurricular activities to go on.

I think we are singling them out and discriminating against their interests while we permit other interest groups to have all sorts of activities.

The CHAIRMAN. Dr. Bell, could a purely nonsectarian, nondenominational prayer be written, or does any prayer of any significance necessarily discriminate in favor of some religious doctrine?

Secretary BELL. I think that there could be some prayers that might come close. But I think that that is not what we ought to do. I think we ought to have diversity and we ought to have tolerance for different religious views and I suspect you could not write a totally nonsectarian prayer.

I do not know if Dr. Bauer has some views on that from his own legal training.

The CHAIRMAN. Dr. Bauer, do you have anything to say on this? Mr. BAUER. Yes, Senator. I would just observe that I think one of the beauties of the President's constitutional amendment is that it would permit a school to provide an opportunity for student groups that have various religious beliefs to meet where they want to in the school to have a prayer that is consistent with their philosophy. There would be no reason why a school would have to try to write a nonsectarian prayer that would not offend anyone. For example, Mormon students could meet in one room at the beginning of the school day.

Baptist students could meet in another, and Catholic students in a third. I think that would be more consistent with the free exercise clause of the Constitution, which our courts seem to have forgotten about.

The CHAIRMAN. Now, there is a great deal of confusion as far as what is consistent with the establishment clause; do you find that