10

Within a short time, on December 23, 1776, the Continental Congress elected two new chaplains-the Reverends Patrick Allison and William White. 6 Journals 1034 (1776). Eight years later, the Continental Congress decided that elections for these officers should be held annually. 27 Journals 683 (1784).

3. The practice of appointing chaplains to serve during legislative sessions continued from the very outset of the First Congress convened under the Constitution." The First Congress met in April 1789, and among its first items of business was the selection of chaplains. See 1 Journal of the Senate, 1st Cong., 1st Sess. 10 (1789) (hereinafter "Senate J."); 1 Journal of the House of Representatives, 1st Cong., 1st Sess. 11-12 (1789) (hereinafter "House J."). The House and Senate soon agreed that "two Chaplains of different denominations be appointed to Congress," one to be elected by each House and

At the Federal Constitutional Convention, Benjamin Franklin had proposed that each day's session be opened with prayer. His · motion was made on June 28, 1787, more than a month after the convention began, and no action was taken on it. See 5 J. Elliot, Debates on the Adoption of the Federal Constitution 253-255 (2d ed. 1836) (1st cd. 1830). Among other things, the delegates were concerned about lack of funds for a chaplain's pay and the fact that institution of a prayer practice at that late date might highlight the absence of prayers at the prior sessions. Ibid.; see also, A. Stokes & L. Pfeffer, supra, at 84. It should also be noted that at least six ratifying conventions (Massachusetts, Connecticut, New Jersey, New York, Rhode Island, and Virginia) elected chaplains as officers or had visiting ministers deliver opening prayers. See Debates, Resolutions and Other Proceedings of the Convention of the Commonwealth of Massachusetts 24 (Jan. 9, 1788); 2 J. Elliot, supra, at 2; Litchfield Monitor (Conn.) 5 (Jan. 14. 1788); Pennsylvania Packet (Dec. 15, 1787); New Jersey Minutes of the Convention 7 (Dec. 13, 1787); Journal of the Convention of New York 7 (June 17, 1788); W. Staples, Rhode Island in the Continental Congress, 1765-1790, at 668, 670, 674 (1971); Debates and Other Proceedings of the Convention of Virginia 13 (June 2, 1788); 3 J. Elliot, supra, at 1. The Virginia Convention compensated its appointed chaplain for his services. Debates and Other Proceedings of the Convention of Virginia, supra, at 470; 3 J. Elliot, supra, at 657.

11

interchanged weekly. 1 Senate J. 12; 1 House J. 16. The Senate elected the first chaplain on April 25, 1789, and the House elected the second chaplain on May 1. 1 Senate J. 16; 1 House J. 26.

A few months later, the first statutory authority for compensation of members and officers of the House and Senate was enacted. Act of Sept. 22, 1789, ch. XVII, 1 Stat. 70. Included in the provisions for compensation of officers was authority to pay "each chaplain of Congress, at the rate of five hundred dollars per annum during the session of Congress" (Section 4, 1 Stat. 71).

*

*

During this same period of time, Members of Congress had been conferring on a draft of the Bill of Rights, including provisions of the First Amendment. James Madison, whose leading role in the drafting and adoption of the First Amendment has been widely acknowledged," introduced the initial draft of the Bill of Rights in the House on June 8, 1789. See II B. Schwartz, The Bill of Rights: A Documentary History 1026 (1971). With respect to religious liberties, this draft provided that "[t]he civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established *" (ibid.). During the course of debate, this language was modified to its current form in the Free Exercise and Establishment Clauses. See Everson v. Board of Education, supra, 330 U.S. at 39 n.27 (Rutledge, J., dissenting). Final agreement on the wording and content of the Bill of Rights was reached by both Houses of Congress on September 25, 1789-just three days after enactment of the legislation providing compensation for the congressional chaplains. 1 House J. 121; 1 Senate J. 88. The first proposed amendments to the Constitution were then referred to the several states for ratification.

It is apparent from this simultaneous consideration by the First Congress of the appointment and compensation of chaplains, on the one hand, and the framing of the Es

7 See, e.g., Everson v. Board of Education, supra, 330 U.S. at 13; id. at 28, 31-43 (Rutledge, J., dissenting).

12

tablishment Clause, on the other, that the Members of the First Congress neither perceived nor intended any friction between legislative chaplaincies and the First Amendment. Indeed, James Madison himself was a member of the House Committee that proposed appointment of a chaplain. See 1 House J. 12. And he voted in favor of the bill to compensate the officers of the House and Senate, including the two chaplains (id. at 108-109).8

The Bill of Rights was ratified on December 15, 1791, when the Virginia Senate approved it. See II B. Schwartz, supra, at 1202. In the first session of Congress after the ratification of the First Amendment (the Second Session of the Second Congress), the House and Senate continued their practice of electing chaplains. See 1 Journal of the House of Representatives, 2d Cong., 2d Sess. 610 (1792); 1 Journal of the Senate, 2d Cong., 2d Sess. 452 (1792). And when the Fourth Congress authorized compensation for officers of the House and Senate, it again provided for compensation to the chaplains. Act of Mar. 10, 1796, ch. IV, Section 3, 1 Stat. 449.

4. This chaplaincy practice in the United States Congress has remained essentially unchanged throughout its history of almost two centuries. In the middle of the

8 Madison apparently changed his mind on the chaplaincy question in later years. In his letter of July 10, 1822, to Edward Livingston, Madison indicated that he did not approve of the practice. See 9 Writings of James Madison 100 (G. Hunt ed. 1910). And in his "Detached Memoranda," Madison elaborated further on his objections. See L. Pfeffer, Church State and Freedom 248-249 (Beacon Press rev. ed. 1967), quoting E. Fleet, Madison's "Detached Memoranda," 111 William and Mary Quarterly 558-559 (1946). These objections, however, came more than three decades. after the First Congress appointed its chaplains in 1789 and the states ratified the First Amendment in 1791. They do not reflect Madison's beliefs while serving in the First Congress.

Two matters warrant mention in this regard. First, for a brief time during the 1850's, both Houses of Congress temporarily abandoned the practice of electing regular chaplains and instead invited local clergymen to officiate on a rotating basis. See Cong. Globe, 35th Cong., 1st Sess. 14, 28 (1857). Dissatisfaction with this procedure, however, soon led to a return to the annual appointment

13

last century, there was considerable discussion within the Congress itself over the constitutionality and desirability of maintaining federal chaplaincies in the House and Senate as well as in the military. See A. Stokes & L. Pfeffer, supra, at 479-480. Various memorials and petitions by citizens were referred to the House and Senate Committees on the Judiciary for consideration. The committee deliberations resulted in the issuance of three reportsin 1850, 1853 and 1854-tracing the history of the federal chaplaincies in this country and concluding that they were sound both as a matter of constitutional jurisprudence and public policy. See H.R. Rep. No. 171, 31st Cong., 1st Sess. (1850); S. Rep. No. 376, 32d Cong., 2d Sess. (1853); H.R. Rep. No. 124, 33d Cong., 1st Sess. (1854).

Of particular relevance is the following passage from the 1853 Senate Report (S. Rep. No. 376, supra, at 4):

[F]rom the beginning, our government has had chaplains in its employment. If this had been a violation of the constitution-an establishment of religionwhy was not its character seen by the great and good men who were coeval with the government

of chaplains as officers of each House. See Cong. Globe, 36th Cong., 1st Sess. 97-98, 162 (1859); id. at 1016 (1860).

Second, although the Senate and House have always selected their own chaplains, the original agreement between the Houses contemplated that each House's chaplain would be of a different denomination and would be exchanged on a weekly basis with the other House. See 1 Senate J. 12; 1 House J. 16. This practice was abandoned in 1856, when the House elected a chaplain without making any provision for weekly rotation. See Cong. Globe, 34th Cong., 1st Sess. 486 (1856). Since that time, each House of Congress has elected its own chaplain without reference to the other House. As it happens, however, the two Houses have continued to elect chaplains of different denominations. Compare Chaplains of the United States Senate, April 25, 1789 to Date (December 8, 1982), on file in the Office of the United States Senate Historian, with History of the United States House of Representatives, H.R. Doc. No. 250, 89th Cong., 1st Sess. 212 (1965). (We have lodged a copy of these documents with the Clerk of this Court.)

14

were in Congress and in the Presidency when this constitutional amendment was adopted? They were wise to discover the true character of the measure; they, if any one did, understood the true purport of the amendment, and were bound, by their duty and their oaths, to resist the introduction or continuance of chaplains, if the views of the petitioners were correct. But they did no such thing; and therefore we have the strongest reason to suppose the notion of the petitioners to be unfounded. Unfounded it no doubt is. 5. When viewed and understood in light of this history, the practice of appointing and compensating a chaplain to open each day's legislative session with a prayer must be sustained. This Court has previously observed that a construction of the Constitution made by the First Congress is of special and compelling significance: "It was a Congress whose constitutional decisions have always been regarded, as they should be regarded, as of the greatest weight in the interpretation of that fundamental instrument." Myers v. United States, 272 U.S. 52, 174-175 (1926). See also United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 327-329 (1936). Indeed, such a construction of the Constitution by the Founding Fathers and Framers has been accorded conclusive effect (Myers v. United States, supra, 272 U.S. at 175):

This Court has repeatedly laid down the principle that a contemporaneous legislative exposition of the Constitution when the founders of our Government and framers of our Constitution were actively participating in public affairs, acquiesced in for a long term of years, fixes the construction to be given its provisions.

There is no reason to depart from this settled principle in this case. The Framers of the Establishment Clause themselves perceived no constitutional objection to legislative chaplaincies. Half a century later, committees of the Thirty-First, Thirty-Second, and Thirty-Third Con.gresses specifically examined this question and reaffirmed