From the Washington ( D.C. ) Herald, January 29,1912
JUDICIAL RELIGIOUS LEGISLATION EXPOSED
Mr. Alonzo T. Jones, in Address Before Secular league, Shows Sunday
Laws Are Maintained by Misconstruction.
In the regular weekly meeting of the Secular League at Pythian Temple
yesterday afternoon, Mr. Alonzo T. Jones gave an address on "Judicial
Religious Legislation." The speaker was followed with deep interest by a
large audience present, who frequently gave expression of their hearty
approval of the principles set forth. At the close of Mr. Jones' address
there was an animated general discussion by a dozen or more members of the
audience. A unanimous vote of thanks was extended to the speaker of the
hour for his earnest work in behalf of individual and constitutional
religious liberty in the District of Columbia and throughout the nation.
The speaker said: The particular judicial religious legislation to which I
invite your attention is that which has been enacted by the courts in
establishing Sunday laws in the United States, against the Protestant and
Christian principle, of the complete separation of religion and civil
power. For, beyond all question, Sunday laws are religious laws, and to
sustain them is decidedly to maintain a union of the religious and civil
power.
The History.
Sunday laws originated in that dark intrigue between Constantine and the
bishops, when, in the language of Draper, " It was the ambition of
Constantine to make theology a branch of politics. It was the hope of every
bishop in the empire to make politics a branch of theology." The result was
the original union of church and state, with full-fledged papacy as the
consequences; and Sunday legislation was the key to the whole.
Those original Sunday laws were specifically religious, and express
exclusion of every other consideration, temporal, civil, or physical. When
these laws were extended to the strict prohibition of "civil transactions
of every kind on sunday," the penalty of "Sacrilege"-- not crime-- that was
incurred by violation of the laws is indisputable evidence of the religious
nature and intent of the laws.
When, in A.D. 538, a council at Orleans declared that what should be
lawful or unlawful on Sunday was a question "exclusively of ecclesiastical
jurisdiction," in the nature of things the penalty incurred by disregard of
the Sunday laws, as defined by a council at Macon, in Gaul, in A.D. 585,
distinguished these laws as exclusively religious and ecclesiastical. That
penalty was the double and cumulative one of, first, "the wrath of God,"
and, second, "the unappeasable anger of the clergy".
In England James I, as head of the church and defender of the faith, by
his "Book of Sport," relieved the people from the extreme pressure of the
Sunday laws. Indulgence of the "sports" on Sunday became so excessive, that
in the reign of Charles I the justices of the peace petitioned the lord
chief justice for a restraint of the excesses. But When the lord chief
justice and another judge issued an order to that effect they were
reproved by the archbishop, who was sustained by the King, and were
required to revoke their order because it was an "invasion of the episcopal
jurisdiction."
When those same Sunday laws of England were extended to the English
colonies in America and were intensified as in New England by the Puritans,
the extreme and exclusive religious nature of these laws was such as to
become forever proverbial. And in the colony of New York the Sunday law
declared that the profanation of that day was "the great scandal of the
Christian faith."
These exclusively religious Sunday laws of the colonies were inevitably the
Sunday laws of the original states here, by the fact that within an our
(July 4, 1776), those very colonies became these states.
Decisions of State Supreme Courts.
Now the decisions of the supreme courts of those original States sustain
those original Sunday laws on their original religious grounds; and then to
evade the constitutional prohibition of religious legislation, in defiance
of the fundamental maxim that "the intent of the law maker is in the law,"
these courts commit the act of judicial religious legislation by declaring
that those religious laws are "civil regulations."
This manifest straddling of the issue it is possible to make some
allowance for in those cases, from the fact that all those original states
except Rhode Island had established religions; and it is too much to expect
those courts, even at the enormous expense of judicial religious
legislation, could make a clean break with tradition. But in the cases of
the later states it is impossible to make any such allowance. All of these
were Territories, and became states, absolutely free from any governmental
recognition of things religious; and in the clear light of American and
constitutional religious liberty gained and established under the splendid
leadership of Jefferson, Madison, and Washington.
Thus the later States arose, having no establishments nor any recognition
of religion, and with their constitutions distinctly prohibiting any such
thing. Yet by sheer force of traditionalism, the Sunday laws of the States
that had established religions have been incorporated in the legislation of
all the later states, whose true traditions and whose original
constitutions forbade any establishment of religion or recognition of
things religious.
Here, then, is the genealogy of all the Sunday laws of all the American
States. The Sunday laws of the later States are only the repetition of the
Sunday laws of the original states, which were only the identical Sunday
laws of the colonies, which were the Sunday laws of England, which were the
Sunday laws of papal Rome. And from the original in Rome to their final in
these latest States, in every generation they have been nothing else than
exclusively religious both in origin and intent.
And yet, in the face of the principle and provision of constitutions
prohibiting such laws, and in defiance of the fundamental maxim of law
itself, the supreme courts in all these States have made these Sunday laws
to be "constitutional" by giving to them a foreign, false, and unthought-of
intent and meaning; said intent and meaning being "civil," "sanitary," and
even pathological, instead of what by every item of evidence in the case
they are--exclusively religious, originally, genealogically, theologically,
and logically.
In perfect illustration of this is the statement of the Supreme Court of
Ohio to the effect that the Sunday law "could not stand for a moment" in
that State in the presence of the principle of separation of church and
state and the constitutional prohibition "if its sole foundation" were
religious.
By the unanimous evidence of history, law, and fact, "the sole
foundation" of Sunday laws has always been religious. The very statute
which the Ohio court was in this case construing stood in the code under
the tittle of "Offenses Against Religion and Morality." Never in the world
was there enacted a Sunday law with any other than religious intent. And
"the intent of the law maker is the law." A law "can have no meaning beyond
the intent of those who made it." "The law must be construed to the
intention of the law maker." Therefore, in truth, in fact, and in law, the
Sunday law of Ohio is unconstitutional; and this, according to the very
word of the court, that the Sunday law "could not stand for a moment" in
the presence of the constitution, "if the sole ground' were exactly what it
is religious.
But in spite of truth, fact, the law, and the maxim of law, the court
proceeded to legislate the Sunday law into "constitutionality" by the
declaration that it is "a mere municipal or police regulation," and then to
recognize religion as its sole foundation by the statement that "in
accordance with the feelings of a majority of the people, the Christian
Sabbath was very properly selected." And then, having thus fixed it as
undoubtedly religious, the court sagely observed that "the legislative
power in Ohio has never extended to enforcement of religious duties, merely
because they are religious." Oh, no; of course not! That would be
unconstitutional. But just call these religious duties "civil," and enforce
them as "civil," and that will be entirely constitutional!
The National Supreme Court.
And this falsely "civil" cover for the truly religious Sunday laws--this
judicial religious legislation--the national Supreme Court has confirmed
for all the States. The history of it is curious as well as valuable.
The constitution of California guarantees the free exercise of religious
profession and worship "without discrimination or preference." A law was
enacted there that "no person shall, on the Christian Sabbath, or Sunday,
keep open any store," &c. In 1858 a case under this statute reached the
Supreme Court of that state. In the finest and best reasoned decision ever
rendered on the subject the court decided the law to be constitutional;
Justice Stephen J. Field dissenting.
In his dissenting opinion Justice Field first gave a "civil," "physical,"
and "general health'" cover to the religious statute designating "the
Christian Sabbath, or Sunday;" and then confirmed and sustained the
religious basis of the law by declaring that "Christianity," being "the
prevailing faith of our people" and "the basis of our civilization," "that
its spirit should infuse itself into our laws, is natural."
The constitutional prohibition of any "discrimination or preference" in
"religious profession or worship" he circumvented thus: "In what manner it
conflicts with the fourth section I am unable to perceive. . . . It
makes no discrimination or preference between the Hebrew and Gentile, the
Mussulman and pagan, the Christian and infidel."
Of course, we must give to the Judge full credit for telling the truth
where he said that he was "unable to perceive" that a statute plainly
designating "the Christian Sabbath" was any discrimination or preference
over Jew, Mussulman, pagan, or infidel. But when a man in his position is
confessedly "unable to perceive" such a plain thing as that, he gives cause
for every serious question as to wether and how he could be able really "to
perceive" all that he described as the "civil," "secular," and hygienic
basis of the religious Sunday law.
And when a man in such a position as that was "unable to perceive" so
open and palpable a thing, as that the positive designation of "the
Christian Sabbath" in the law is a discrimination and preference in favor
of the "Christian" religion, then how can any of us be fairly considered
culpable in being equally unable to perceive that Justice Field's "civil"
"secular," "physical," and hygienic basis of Sunday laws is anything else
than inept, foreign, and false? And is it the American principle that the
defective perception of the judge shall be the final test of the supreme
law?
The next year after that decision of the California court, and Justice
Field's dissenting opinion, Justice Field himself became chief justice of
the California court. In 1861 another Sunday law case came before that
court. In the decision upon this case, the former decision of the court was
supplanted with Justices Field's dissenting opinion in that case, which
stood as the law of the subject in that state until the people of
California, as the supreme expounders of their own will, expressed in their
own constitution, by the decision of popular vote, overwhelmingly swept out
of existence all Sunday laws in the State.
Chief Justice Field, of the California court, became Associate Justice
Field, of the national Supreme Court. And when a case came before the
national Supreme Court as to the constitutionality of Sunday laws in the
States, the court sustained those Sunday laws, and cited Justice Field's
dissenting opinion as the ground of the decision. And so, by national
decision, the religious Sunday laws, upon the foreign and false basis
furnished by Justice Field's judicial legislation, have been fastened upon
all the States. And this plain indication of just what the national Supreme
Court will do with Sunday laws by national government whenever there shall
come to that court an opportunity. This is further indicated by the fact
that in its decision that "this is a Christian nation," the national
Supreme Court mentioned "the laws respecting the observance of the
Sabbath," as one of the proofs of it.
And all of this is strictly pertinent and up to date, by the fact that
the Sunday Rest Committee of the District of Columbia, through its
attorney, has issued to Congress a printed brief on "The Legal and
Constitutional Aspects" of Sunday legislation; pleading that it "be
regarded as a civil," yet presenting no single item of any other ground
than religious.
In The District of Columbia.
And just let Congress enact a Sunday law for the District of Columbia,
and the above--mentioned and dangerous "opportunity" will come to the
national Supreme Court. Then let the court still hold the ground taken in
its decisions here cited, and there you will have the same old religious
Sunday laws made of national force and authority here. In that there will
be restored and established here the old and original union of religion and
the state. And in that there will be put into the hands of the church
combine here the key to the union of church and state in this nation. And
that church combine will promptly see to it that this key shall be
diligently used to open in this land all the doors of religious despotisms
of the old order of things. And the creaking of the old and rusty hinges of
these opening doors will sound the knell of constitutional religious
liberty in this nation and for the world.
And this will have all been brought about solely by judicial religious
legislation: that is, by the courts, State and national, having made
exclusively religious laws constitutional against the positive inhibitions
of the constitutions, State and national, and against the fundamental
maxims of law itself, by giving to these laws a meaning false in fact, and
foreign both to the nature of those laws and to the intent of the makers of
the laws.
The principle that must ever, in justice, guide in the construction of
statutes as well as constitutions, is authoritatively stated as follows:
"A court which should allow a change of public sentiment to influence it
in giving to a written constitution a construction not warranted by the
intention of its founders, would be justly chargeable with reckless
disregard of official oath and public duty."-- Cooley, "Constitutional
Limitations." page 67.
The principle applies with equal force to the construction of a statute,
as to the construction of a constitution. And wether the change of
sentiment which a court should allow thus to influence it be public and
general or only the private and personal sentiment and bias of the court
itself, the principle is the same and such court is equally "chargeable
with reckless disregard of official oath and public duty." Yet this is
precisely what has been done by the courts when, by setting up an utterly
new and foreign meaning, they give to Sunday legislation a construction not
in any sense warranted by the intention of its founders or its framers
anywhere in human history or experience.
Not Recall, but Instruction.
Now, upon all this, some may be ready to say, "Recall such judges." But
I do not say recall the judges. I say, Instruct the courts.
You recall the judges, and you will fill their places only with other
judges as ill--informed on the principles and as precedent--bound as those
whom you recall. But instruct the courts, and you can have an intelligent
construction of the law and the constitution; and so an intelligent
expression of the will of the people.
In the government of the people in this American republic it is ever the
inalienable right and undeniable prerogative of the people to instruct the
judicial, as truly as it is their prerogative to instruct the legislative
and executive branches of their government.
In this government of the people the Supreme Court is not the supreme
tribunal upon constitutional questions. In the ringing words of Abraham
Lincoln, "The people, the people, of these United States are the rightful
masters of both Congress and the courts." And further, in his first
inaugural: "I do not forget the position, assumed by some, that
constitutional questions are to be decided by the Supreme Court. * *
* At the same time, the candid citizen must confess that if the policy of
the government, upon vital questions affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court, the instant they are
made, as in ordinary litigation between parties in personal actions, the
people will have ceased to be their own rulers--having to that extent
practically resigned their government into the hands of the eminent
tribunal. Nor is this view any assault upon the court or the judges." And
this upon the principle as stated by Lincoln in another place: "I insist
that if there is anything which it is the duty of the whole people to never
intrust to any hands but their own, that thing is the preservation and
perpetuity of their own liberties and institutions."
The ways and means of instructing the courts are several: but I touch
only the primary and fundamental one. That is: Bu open, free and full
discussion of the principles involved, to create intelligent public
opinion. As perfectly stated by Abraham Lincoln: "Public sentiment is
everything. With public sentiment nothing can fail; without it nothing can
succeed. Consequently, he who molds public sentiment goes deeper than he
who enacts statutes or pronounces decisions. He makes statutes and
decisions possible or impossible to be executed."
It is true this is a much slower and more laborious process than is the
recall. Yet, it has the merit of being strictly according to the
fundamental principles of this republic as a government of the people. It
is easier to arouse political passions than it is to create intelligent and
wholesome public opinion by calm, patient, and studious discussion of
fundamental principles. And the crowd is ever more ready to indulge natural
and political passion then it is to study the Constitution.
Conclusion.
The sum of the whole matter, then, is this:
Sunday legislation in any form or to any extent is only religious; and
in itself means a union of religion and state.
The American constitutional principle of government is the total
separation of religion and state.
To sustain such laws is to establish the union of religion and the state,
and to open the doors to the religious meddlings, despotisms, and
persecutions of the old order of things from which the American people had
freed themselves.
By judicial religious legislation, State and national, against the
positive inhibitions of the constitutions, State and national, and against
the fundamental maxims of law itself, contrary to truth and fact, the
courts, State and national, have sustained such laws.
In this the courts have set the American people face to face with the
imminent and final denial of the inestimable boon of religious liberty,
which, by their constitutions, State and national, they had expressly
secured to themselves.
Will the people of these United States, as "the rightful masters of both
Congresses and courts," allow themselves thus to be filched of their own
rights and liberties proclaimed and fixed by themselves upon divine
principles and their own supreme laws?From the Washington ( D.C. ) Herald,
January 29,1912
JUDICIAL RELIGIOUS LEGISLATION EXPOSED
Mr. Alonzo T. Jones, in Address Before Secular league, Shows Sunday
Laws Are Maintained by Misconstruction.
In the regular weekly meeting of the Secular League at Pythian Temple
yesterday afternoon, Mr. Alonzo T. Jones gave an address on "Judicial
Religious Legislation." The speaker was followed with deep interest by a
large audience present, who frequently gave expression of their hearty
approval of the principles set forth. At the close of Mr. Jones' address
there was an animated general discussion by a dozen or more members of the
audience. A unanimous vote of thanks was extended to the speaker of the
hour for his earnest work in behalf of individual and constitutional
religious liberty in the District of Columbia and throughout the nation.
The speaker said: The particular judicial religious legislation to which I
invite your attention is that which has been enacted by the courts in
establishing Sunday laws in the United States, against the Protestant and
Christian principle, of the complete separation of religion and civil
power. For, beyond all question, Sunday laws are religious laws, and to
sustain them is decidedly to maintain a union of the religious and civil
power.
The History.
Sunday laws originated in that dark intrigue between Constantine and the
bishops, when, in the language of Draper, " It was the ambition of
Constantine to make theology a branch of politics. It was the hope of every
bishop in the empire to make politics a branch of theology." The result was
the original union of church and state, with full-fledged papacy as the
consequences; and Sunday legislation was the key to the whole.
Those original Sunday laws were specifically religious, and express
exclusion of every other consideration, temporal, civil, or physical. When
these laws were extended to the strict prohibition of "civil transactions
of every kind on sunday," the penalty of "Sacrilege"-- not crime-- that was
incurred by violation of the laws is indisputable evidence of the religious
nature and intent of the laws.
When, in A.D. 538, a council at Orleans declared that what should be
lawful or unlawful on Sunday was a question "exclusively of ecclesiastical
jurisdiction," in the nature of things the penalty incurred by disregard of
the Sunday laws, as defined by a council at Macon, in Gaul, in A.D. 585,
distinguished these laws as exclusively religious and ecclesiastical. That
penalty was the double and cumulative one of, first, "the wrath of God,"
and, second, "the unappeasable anger of the clergy".
In England James I, as head of the church and defender of the faith, by
his "Book of Sport," relieved the people from the extreme pressure of the
Sunday laws. Indulgence of the "sports" on Sunday became so excessive, that
in the reign of Charles I the justices of the peace petitioned the lord
chief justice for a restraint of the excesses. But When the lord chief
justice and another judge issued an order to that effect they were
reproved by the archbishop, who was sustained by the King, and were
required to revoke their order because it was an "invasion of the episcopal
jurisdiction."
When those same Sunday laws of England were extended to the English
colonies in America and were intensified as in New England by the Puritans,
the extreme and exclusive religious nature of these laws was such as to
become forever proverbial. And in the colony of New York the Sunday law
declared that the profanation of that day was "the great scandal of the
Christian faith."
These exclusively religious Sunday laws of the colonies were inevitably the
Sunday laws of the original states here, by the fact that within an our
(July 4, 1776), those very colonies became these states.
Decisions of State Supreme Courts.
Now the decisions of the supreme courts of those original States sustain
those original Sunday laws on their original religious grounds; and then to
evade the constitutional prohibition of religious legislation, in defiance
of the fundamental maxim that "the intent of the law maker is in the law,"
these courts commit the act of judicial religious legislation by declaring
that those religious laws are "civil regulations."
This manifest straddling of the issue it is possible to make some
allowance for in those cases, from the fact that all those original states
except Rhode Island had established religions; and it is too much to expect
those courts, even at the enormous expense of judicial religious
legislation, could make a clean break with tradition. But in the cases of
the later states it is impossible to make any such allowance. All of these
were Territories, and became states, absolutely free from any governmental
recognition of things religious; and in the clear light of American and
constitutional religious liberty gained and established under the splendid
leadership of Jefferson, Madison, and Washington.
Thus the later States arose, having no establishments nor any recognition
of religion, and with their constitutions distinctly prohibiting any such
thing. Yet by sheer force of traditionalism, the Sunday laws of the States
that had established religions have been incorporated in the legislation of
all the later states, whose true traditions and whose original
constitutions forbade any establishment of religion or recognition of
things religious.
Here, then, is the genealogy of all the Sunday laws of all the American
States. The Sunday laws of the later States are only the repetition of the
Sunday laws of the original states, which were only the identical Sunday
laws of the colonies, which were the Sunday laws of England, which were the
Sunday laws of papal Rome. And from the original in Rome to their final in
these latest States, in every generation they have been nothing else than
exclusively religious both in origin and intent.
And yet, in the face of the principle and provision of constitutions
prohibiting such laws, and in defiance of the fundamental maxim of law
itself, the supreme courts in all these States have made these Sunday laws
to be "constitutional" by giving to them a foreign, false, and unthought-of
intent and meaning; said intent and meaning being "civil," "sanitary," and
even pathological, instead of what by every item of evidence in the case
they are--exclusively religious, originally, genealogically, theologically,
and logically.
In perfect illustration of this is the statement of the Supreme Court of
Ohio to the effect that the Sunday law "could not stand for a moment" in
that State in the presence of the principle of separation of church and
state and the constitutional prohibition "if its sole foundation" were
religious.
By the unanimous evidence of history, law, and fact, "the sole
foundation" of Sunday laws has always been religious. The very statute
which the Ohio court was in this case construing stood in the code under
the tittle of "Offenses Against Religion and Morality." Never in the world
was there enacted a Sunday law with any other than religious intent. And
"the intent of the law maker is the law." A law "can have no meaning beyond
the intent of those who made it." "The law must be construed to the
intention of the law maker." Therefore, in truth, in fact, and in law, the
Sunday law of Ohio is unconstitutional; and this, according to the very
word of the court, that the Sunday law "could not stand for a moment" in
the presence of the constitution, "if the sole ground' were exactly what it
is religious.
But in spite of truth, fact, the law, and the maxim of law, the court
proceeded to legislate the Sunday law into "constitutionality" by the
declaration that it is "a mere municipal or police regulation," and then to
recognize religion as its sole foundation by the statement that "in
accordance with the feelings of a majority of the people, the Christian
Sabbath was very properly selected." And then, having thus fixed it as
undoubtedly religious, the court sagely observed that "the legislative
power in Ohio has never extended to enforcement of religious duties, merely
because they are religious." Oh, no; of course not! That would be
unconstitutional. But just call these religious duties "civil," and enforce
them as "civil," and that will be entirely constitutional!
The National Supreme Court.
And this falsely "civil" cover for the truly religious Sunday laws--this
judicial religious legislation--the national Supreme Court has confirmed
for all the States. The history of it is curious as well as valuable.
The constitution of California guarantees the free exercise of religious
profession and worship "without discrimination or preference." A law was
enacted there that "no person shall, on the Christian Sabbath, or Sunday,
keep open any store," &c. In 1858 a case under this statute reached the
Supreme Court of that state. In the finest and best reasoned decision ever
rendered on the subject the court decided the law to be constitutional;
Justice Stephen J. Field dissenting.
In his dissenting opinion Justice Field first gave a "civil," "physical,"
and "general health'" cover to the religious statute designating "the
Christian Sabbath, or Sunday;" and then confirmed and sustained the
religious basis of the law by declaring that "Christianity," being "the
prevailing faith of our people" and "the basis of our civilization," "that
its spirit should infuse itself into our laws, is natural."
The constitutional prohibition of any "discrimination or preference" in
"religious profession or worship" he circumvented thus: "In what manner it
conflicts with the fourth section I am unable to perceive. . . . It
makes no discrimination or preference between the Hebrew and Gentile, the
Mussulman and pagan, the Christian and infidel."
Of course, we must give to the Judge full credit for telling the truth
where he said that he was "unable to perceive" that a statute plainly
designating "the Christian Sabbath" was any discrimination or preference
over Jew, Mussulman, pagan, or infidel. But when a man in his position is
confessedly "unable to perceive" such a plain thing as that, he gives cause
for every serious question as to wether and how he could be able really "to
perceive" all that he described as the "civil," "secular," and hygienic
basis of the religious Sunday law.
And when a man in such a position as that was "unable to perceive" so
open and palpable a thing, as that the positive designation of "the
Christian Sabbath" in the law is a discrimination and preference in favor
of the "Christian" religion, then how can any of us be fairly considered
culpable in being equally unable to perceive that Justice Field's "civil"
"secular," "physical," and hygienic basis of Sunday laws is anything else
than inept, foreign, and false? And is it the American principle that the
defective perception of the judge shall be the final test of the supreme
law?
The next year after that decision of the California court, and Justice
Field's dissenting opinion, Justice Field himself became chief justice of
the California court. In 1861 another Sunday law case came before that
court. In the decision upon this case, the former decision of the court was
supplanted with Justices Field's dissenting opinion in that case, which
stood as the law of the subject in that state until the people of
California, as the supreme expounders of their own will, expressed in their
own constitution, by the decision of popular vote, overwhelmingly swept out
of existence all Sunday laws in the State.
Chief Justice Field, of the California court, became Associate Justice
Field, of the national Supreme Court. And when a case came before the
national Supreme Court as to the constitutionality of Sunday laws in the
States, the court sustained those Sunday laws, and cited Justice Field's
dissenting opinion as the ground of the decision. And so, by national
decision, the religious Sunday laws, upon the foreign and false basis
furnished by Justice Field's judicial legislation, have been fastened upon
all the States. And this plain indication of just what the national Supreme
Court will do with Sunday laws by national government whenever there shall
come to that court an opportunity. This is further indicated by the fact
that in its decision that "this is a Christian nation," the national
Supreme Court mentioned "the laws respecting the observance of the
Sabbath," as one of the proofs of it.
And all of this is strictly pertinent and up to date, by the fact that
the Sunday Rest Committee of the District of Columbia, through its
attorney, has issued to Congress a printed brief on "The Legal and
Constitutional Aspects" of Sunday legislation; pleading that it "be
regarded as a civil," yet presenting no single item of any other ground
than religious.
In The District of Columbia.
And just let Congress enact a Sunday law for the District of Columbia,
and the above--mentioned and dangerous "opportunity" will come to the
national Supreme Court. Then let the court still hold the ground taken in
its decisions here cited, and there you will have the same old religious
Sunday laws made of national force and authority here. In that there will
be restored and established here the old and original union of religion and
the state. And in that there will be put into the hands of the church
combine here the key to the union of church and state in this nation. And
that church combine will promptly see to it that this key shall be
diligently used to open in this land all the doors of religious despotisms
of the old order of things. And the creaking of the old and rusty hinges of
these opening doors will sound the knell of constitutional religious
liberty in this nation and for the world.
And this will have all been brought about solely by judicial religious
legislation: that is, by the courts, State and national, having made
exclusively religious laws constitutional against the positive inhibitions
of the constitutions, State and national, and against the fundamental
maxims of law itself, by giving to these laws a meaning false in fact, and
foreign both to the nature of those laws and to the intent of the makers of
the laws.
The principle that must ever, in justice, guide in the construction of
statutes as well as constitutions, is authoritatively stated as follows:
"A court which should allow a change of public sentiment to influence it
in giving to a written constitution a construction not warranted by the
intention of its founders, would be justly chargeable with reckless
disregard of official oath and public duty."-- Cooley, "Constitutional
Limitations." page 67.
The principle applies with equal force to the construction of a statute,
as to the construction of a constitution. And wether the change of
sentiment which a court should allow thus to influence it be public and
general or only the private and personal sentiment and bias of the court
itself, the principle is the same and such court is equally "chargeable
with reckless disregard of official oath and public duty." Yet this is
precisely what has been done by the courts when, by setting up an utterly
new and foreign meaning, they give to Sunday legislation a construction not
in any sense warranted by the intention of its founders or its framers
anywhere in human history or experience.
Not Recall, but Instruction.
Now, upon all this, some may be ready to say, "Recall such judges." But
I do not say recall the judges. I say, Instruct the courts.
You recall the judges, and you will fill their places only with other
judges as ill--informed on the principles and as precedent--bound as those
whom you recall. But instruct the courts, and you can have an intelligent
construction of the law and the constitution; and so an intelligent
expression of the will of the people.
In the government of the people in this American republic it is ever the
inalienable right and undeniable prerogative of the people to instruct the
judicial, as truly as it is their prerogative to instruct the legislative
and executive branches of their government.
In this government of the people the Supreme Court is not the supreme
tribunal upon constitutional questions. In the ringing words of Abraham
Lincoln, "The people, the people, of these United States are the rightful
masters of both Congress and the courts." And further, in his first
inaugural: "I do not forget the position, assumed by some, that
constitutional questions are to be decided by the Supreme Court. * *
* At the same time, the candid citizen must confess that if the policy of
the government, upon vital questions affecting the whole people, is to be
irrevocably fixed by decisions of the Supreme Court, the instant they are
made, as in ordinary litigation between parties in personal actions, the
people will have ceased to be their own rulers--having to that extent
practically resigned their government into the hands of the eminent
tribunal. Nor is this view any assault upon the court or the judges." And
this upon the principle as stated by Lincoln in another place: "I insist
that if there is anything which it is the duty of the whole people to never
intrust to any hands but their own, that thing is the preservation and
perpetuity of their own liberties and institutions."
The ways and means of instructing the courts are several: but I touch
only the primary and fundamental one. That is: Bu open, free and full
discussion of the principles involved, to create intelligent public
opinion. As perfectly stated by Abraham Lincoln: "Public sentiment is
everything. With public sentiment nothing can fail; without it nothing can
succeed. Consequently, he who molds public sentiment goes deeper than he
who enacts statutes or pronounces decisions. He makes statutes and
decisions possible or impossible to be executed."
It is true this is a much slower and more laborious process than is the
recall. Yet, it has the merit of being strictly according to the
fundamental principles of this republic as a government of the people. It
is easier to arouse political passions than it is to create intelligent and
wholesome public opinion by calm, patient, and studious discussion of
fundamental principles. And the crowd is ever more ready to indulge natural
and political passion then it is to study the Constitution.
Conclusion.
The sum of the whole matter, then, is this:
Sunday legislation in any form or to any extent is only religious; and
in itself means a union of religion and state.
The American constitutional principle of government is the total
separation of religion and state.
To sustain such laws is to establish the union of religion and the state,
and to open the doors to the religious meddlings, despotisms, and
persecutions of the old order of things from which the American people had
freed themselves.
By judicial religious legislation, State and national, against the
positive inhibitions of the constitutions, State and national, and against
the fundamental maxims of law itself, contrary to truth and fact, the
courts, State and national, have sustained such laws.
In this the courts have set the American people face to face with the
imminent and final denial of the inestimable boon of religious liberty,
which, by their constitutions, State and national, they had expressly
secured to themselves.
Will the people of these United States, as "the rightful masters of both
Congresses and courts," allow themselves thus to be filched of their own
rights and liberties proclaimed and fixed by themselves upon divine
principles and their own supreme laws?
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