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    August 28, 1889

    “Some ‘Constitutional’ Arguments for a National Sunday Law” The American Sentinel 4, 31, pp. 241, 242.

    ATJ

    WHATEVER the Sunday-law movement is advocated it is met with the valid objection that a national Sunday law would be unconstitutional. The field secretary of the American Sabbath Union has had to meet this more in the last few months than has anybody else in this country, because his work has been more widely carried on, and he attempts to answer the argument. He attempts to prove, and to his own satisfaction proves, that Sunday laws are strictly constitutional. The first step in his argument is that “the supreme courts of twenty-five States have declared them to be constitutional.” And he seems to be astonished almost out of countenance to think that anybody in this Nation should deny the unconstitutionality of a national Sunday law in the face of such an overwhelming argument as that the supreme courts of most of the States should say that they are constitutional.AMS August 28, 1889, page 241.1

    We have heard the field secretary several times on this point, and for sometime we were considerably at a loss to decide in our own minds whether the argument was a piece of deliberate sophistry or whether the gentleman supposed it actually to be the truth. The field secretary of the American Sabbath Union needs to become informed upon this subject to the extent that he shall know that decisions of supreme courts of States have no bearing whatever upon questions of national law. A thing might be constitutional and declared so to be by the supreme courts in all the States of the Union and yet it might be wholly unconstitutional if framed into a national law. In many things the States can do what the Nation cannot do. Article X. of the United States Constitution says, “The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.” There are powers that are not delegated to the United States; there are powers that are not prohibited by it to the States. These still remain with the States or with the people, therefore the States may exert such powers under their own constitutions, while it would be wholly unconstitutional for Congress to attempt to exercise such powers. The enactment and the enforcement of Sunday laws is one of these powers. We know full well that, the States have declared Sunday laws to be constitutional because in these things the States can do what they please unless forbidden by their own constitutions. All this is true, and it is equally true that a national Sunday law would be unconstitutional. State constitutions and decisions have no bearing whatever upon that question.AMS August 28, 1889, page 241.2

    When the field secretary next speaks upon this subject, we ask him for his own sake not to presume upon the ignorance of his hearers by passing off the supreme court decisions of the States as though they were the decisions of the Supreme Court of the United States.AMS August 28, 1889, page 241.3

    The next step in his argument is that it would be constitutional because the Constitution already contains a Sunday law in itself in the phrase, “Sundays excepted” in the clause which allows the President ten days to consider a bill. But this argument is also sheer fallacy, because that clause does not undertake in any sense to control the action of the President on that day. It does not even say nor imply that he shall not sign a bill on Sunday. The phrase is simply the recognition of the fact that the President of the United States may be a person who deems Sunday to be a holy day, and the Constitution in harmony with itself throughout, in this simply recognizes the right of every man to the free enjoyment of his religious profession if he makes any.AMS August 28, 1889, page 241.4

    Suppose the President of the United States should be a man who regards Saturday as the holy day and observes it religiously, and he should except the Saturdays and count the Sundays in those ten days. The Constitution would sanction that action as fully as it would the action of the President who deems Sunday a holy day.AMS August 28, 1889, page 241.5

    Suppose further, that the President were a man who makes no religious profession at all; suppose in fact he were an infidel, cared nothing whatever for Sunday as such, and should actually sign a bill on that day; that bill would thus become a law as certainly as those that were signed on Monday, or any other day of the week. That phrase does not in any sense conflict with the first amendment, nor does it sanction in any way the demand that is being made upon Congress to pass a law establishing the religious observance of Sunday or declaring what people shall or shall not do on that day.AMS August 28, 1889, page 241.6

    The fallacy further appears in this that whereas the Constitution through thus excepting Sunday, does not in any way propose to say what the President shall or shall not do on Sunday, nor to touch upon his actions in any way upon that day, the Sunday-law workers demand that this as “the acorn” shall be expanded into such a mighty oak as shall cover every action of every soul in this Nation on Sunday, and under which shall be declared what things only can be done on that day not only by all the people but by the President himself. This certainly is to force in-finite possibilities from infinitesimal proportions. But there is nothing too extravagant to be beyond the demands of this would-be hierarchy.AMS August 28, 1889, page 241.7

    The next argument is that Sunday work and the carrying of Sunday mails “is an infringement of the first amendment to the Constitution” which prohibits Congress from making any law prohibiting the free exercise of religion “because no man who keeps Sunday can keep his place in the government service, and therefore such are excluded as really from the public service as though a direct religious test were applied,” only that that in this case it is declared to be “an irreligious test.”AMS August 28, 1889, page 241.8

    Well, let us examine this. Suppose we admit that in the carrying of the mails and in other work on Sunday, the man who regards Sunday as a holy day, and who treats it as such, is thereby virtually excluded and the government does him injustice and that therefore a national law must be enacted forbidding all such work on the Sunday to protect these in their rights of conscience, and to give them their share of the offices. Then, there are thousands of people who regard Saturday as a holy day and who keep it as such. These are citizens equally with the others, and have equal rights as citizens with the others; but, the government runs the mails, and does all manner of work on Saturday, and so long as that is so, no man who regards Saturday as a holy day can have a place in the public service. Therefore the next thing for Congress to do would be to pass a national law absolutely prohibiting all such work on Saturday so as to give equal justice to these with the rest.AMS August 28, 1889, page 242.1

    But no, none who demand Sunday laws would for a moment allow that any such thing as this ought ever to be done. But if it shall be done in behalf of one class of religionists, why not of another? If religious profession is to be the basis of legislation why should the government discriminate, why should it expressly open the way for one class of religionists and exclude another class? Every fair-minded man must admit that this would not be equal and exact justice. Those who demand the Sunday law will not allow for a moment that the government should do such a thing, therefore, it is clearly proved that they want governmental discrimination in their favor, and that solely upon the basis of religious profession.AMS August 28, 1889, page 242.2

    But under civil government no man can ever of right make his religious profession the basis of any claim for governmental favor. Civil government is for all alike. It takes cognizance of men’s actions and deals with men solely as men, without regard to any question whatever of religious or non-religious profession or worship. Government rests solely upon this basis, it is composed of men as men, and its affairs are all conducted solely upon this basis.AMS August 28, 1889, page 242.3

    “Oh!” it is exclaimed, “in a Christian land this would exclude all Christians from office, and thus deprive them of rewards and emoluments that men enjoy who are not Christians, and would thus be a discrimination against the Christian religion.” To those who offer it this appears very forcible; but it is easily answered. The Christian who is indeed a Christian, enjoys privileges and rewards as far above the rewards and emoluments of governmental office as heaven is higher than the earth; so that the government when treating all men as men, and treating them all alike, does not discriminate against the Christian. The Christian’s profession is the free choice of a heavenly gift which is worth more than all earth’s treasures and all its honors. In the precious presence of Jesus Christ no such question ever comes into his mind as to whether he can have a twelve-dollar or a twelve-thousand-dollar post-office or not. This complaint of the Sunday-law workers, that Christians are excluded from a share in the governmental plunder in its analysis, simply argues that the blessedness of the religion of Jesus Christ, and the riches of the heavenly gift in him, are upon a level with the offices and emoluments of governmental service; and so entirely so at that, that they cannot afford to do without legislation in their special favor. A people who put no more value than that upon the unsearchable riches of Christ haven’t enough of the Christian religion about them to do either themselves or the government any good, and the more any government allows itself to favor any such pleas the lower it will be brought.AMS August 28, 1889, page 242.4

    Oh that those who name the name of Christ would name him for what he is! that they would see in his religion something more than temporal expediency! that they would see in the riches of his grace something more valuable than to fear the competition of the emoluments of governmental service! that they would see that there is a power in the manifestation: of his glorious character greater than that of all the legislative enactments that have been or can be written upon the statute books of all ages and all nations.AMS August 28, 1889, page 242.5

    A. T. J.

    “The Constitutionality of Sunday Laws” The American Sentinel 4, 31, pp. 244, 245.

    ATJ

    THE Supreme court decisions of the different States of the Union on the subject of Sunday laws, are worth the study of any person who will take the time, not particularly for any real worth that there is in them, but just to see what queer freaks the judicial mind is capable of. The most recent, as well as one of the most remarkable, is the decision of the supreme court of Arkansas. Considerable mention has been made in the SENTINEL of the prosecutions of seventh-day observers in that State, in 1885 to 1887, for working on Sunday. The first case prosecuted was appealed to the supreme court. The court rendered a decision in which it cited particularly a Massachusetts decision, confirmed the judgment of the lower court, and closed with the following words:—AMS August 28, 1889, page 244.1

    “The appellant’s argument, then, is reduced to this: That because he conscientiously believes he is permitted by the law of God to labor on Sunday, he may violate with impunity the statute declaring it illegal to do so; but a man’s religious belief cannot be accepted as a justification for his committing an overt act made criminal by the law of the land. If the law operates harshly, as laws sometimes do, the remedy is in the hands of the Legislature. It is not the province of the judiciary to pass upon the wisdom or policy of legislation. That is for the members of the legislative department; and the only appeal from their determination is to the constituency.”AMS August 28, 1889, page 244.2

    This decision gives to the Legislature all the omnipotence of the British Parliament, and in that does away with all necessity for a written constitution. The decision, on this principle alone, is un-American. No legislative body in this country is framed upon the model of the British Parliament in respect to power. In this country, the powers of every Legislature are defined and limited by constitutions. It is the prerogative of supreme courts to define the meaning of the constitution and to decide whether an act of the Legislature is constitutional or not. If the act is constitutional, then it must stand, whatever the results may be. And the supreme court is the body by which the constitutionality or the unconstitutionality of any statute is to be discovered. But if, as this decision declares, the Legislature is omnipotent, and that which it does must stand as law; if it be true that “the only appeal” from a legislative enactment is “to the constituency,” then there is no earthly use for a constitution. “One of the objects for which the judiciary department is established, is the protection of the constitutional rights of the citizen;” but if the only appeal of the citizen is to the constituency, then he has no constitutional rights in any true sense of the word. Such a decision is contrary to every principle of constitutional law.AMS August 28, 1889, page 244.3

    So long as there is a constitution above the Legislature, which defines and limits its powers, and protects and guards the rights of the citizens, so long it is the province of the supreme court to pronounce upon the acts of the Legislature. The supreme court of Arkansas, therefore, in this case, clearly abdicated one of the very functions for which it was created, or else subverted the constitution of Arkansas; and in either case, bestowed upon the Legislature the omnipotence of the British Parliament, which is contrary to every principle of American institutions. Nor is the State of Arkansas an exception in this case, for this is the usual procedure of supreme courts in sustaining Sunday laws. They cannot be sustained upon any American principle; resort has to be made for every instance, and has been with scarcely no exception, either to the Church and State principles of the British government, or to the British principle of the omnipotence of the legislative power. But American principles are far above and far in advance of the principles of the British Government, in that they recognize constitutional limitations upon the legislative power, and countenance no union of Church and State; consequently Sunday laws never have been, and never can be, sustained upon American principles.AMS August 28, 1889, page 244.4

    That this stricture upon the supreme court of Arkansas is not unjust, we have the clearest proof. The three judges who then composed the supreme court were all members of the Bar Association of the State. In less than three months after this decision was rendered, the Bar Association unanimously made a report to the State on “law and law reform,” an official copy of which we have in our possession. In that report, under the heading “Sunday Laws,” is the following:—AMS August 28, 1889, page 244.5

    “Our statute, as it stands in Mansfield’s Digest, provides that ‘persons who are members of any religious society who observe as Sabbath any other day of the week than the Christian Sabbath, or Sunday, shall not be subject to the penalties of this act [the Sunday Law], so that they observe one day in seven agreeably to the faith and practice of their church or society.”—Mans. Dig., sec. 1886.AMS August 28, 1889, page 244.6

    “This statute had been in force from the time of the organization of the State government; but it was unfortunately repealed by the act of March 3, 1895.”—Acts 1885, p. 37.AMS August 28, 1889, page 244.7

    “While the Jews adhere, of course, to the letter of the original command to remember the seventh day of the week, there is also in the State a small but respectable body of Christians who consistently believe that the seventh day is the proper day to be kept sacred; and in the case of Scoles vs. State, our supreme court was compelled to affirm a judgment against a member of one of these churches, for worshiping God according to the dictates of his own conscience, supported, as he supposed, by good theological arguments. It is very evident that the system now in force, savoring as it does very much of religious persecution, is a relic of the Middle Ages, when it was thought that men could be made orthodox by an act of Parliament. Even in Massachusetts, where Sabbatarian laws have always been enforced with unusual rigor, exceptions are made in favor of persons who religiously observe any other day in the place of Sunday. We think that the law as it stood in Mansfield’s Digest should be restored, with such an amendment as would prevent the sale of spirits on Sunday, as that was probably the object of repealing the above section.”AMS August 28, 1889, page 245.1

    Now the Arkansas constitution says:—AMS August 28, 1889, page 245.2

    “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; no man can of right be compelled to attend, erect, or support any place of worship, or to maintain any ministry, against his consent. No human authority can, in any case or manner whatsoever, control or interfere with the right of conscience; and no preference shall ever be given by law to any religious establishment, denomination, or mode of worship, above any other.”AMS August 28, 1889, page 245.3

    This report of the Bar Association says: “In the case of Scoles vs. State, our supreme court was compelled to affirm a judgment against a member of one of these churches, for worshiping God according to the dictates of his own conscience.”AMS August 28, 1889, page 245.4

    Thus the Bar Association of that State declare that the supreme court of that State confirmed a judgment against a man for doing that which the constitution of that State explicitly declares that “all men have a natural and indefeasible right to do.”AMS August 28, 1889, page 245.5

    And the members of the supreme court all being members of the Bar Association, in that unanimous report of the association they confessed that they confirmed a judgment against a man for doing that which the constitution, which they were sworn to uphold, explicitly declares that “all men have a natural and indefeasible right to do.”AMS August 28, 1889, page 245.6

    And that is how Sunday laws were made “constitutional” in Arkansas.AMS August 28, 1889, page 245.7

    A. T. J.

    “‘A Very Interesting Question,’ Indeed” The American Sentinel 4, 31, p. 245.

    ATJ

    IN the “hearing” before the Senate Committee last winter, in behalf of the proposed amendment establishing a Christian religion, the following colloquy took place:—AMS August 28, 1889, page 245.1

    Rev. George K. Morris, D. D.—The Roman Catholics in 1886 were represented to be 7,200,000 citizens including children. The evangelical population at that time—not the church membership only, but population—numbered 42,646,279.”AMS August 28, 1889, page 245.2

    The Chairman— You count men, women, and children?AMS August 28, 1889, page 245.3

    Dr. Morris—In all cases.AMS August 28, 1889, page 245.4

    The Chairman— And entirely regardless now of what is called experiencing religion?AMS August 28, 1889, page 245.5

    Dr. Morris—Yes sir, in each case, Catholic and evangelical, we give the population, those who entertain the doctrines of the church.AMS August 28, 1889, page 245.6

    The Chairman— In that, do you count all who are Catholics on one side and all who are not Catholics on the other?AMS August 28, 1889, page 245.7

    Dr. Morris—No, sir. We count all who are Catholics on one side and all who are of the evangelical faiths on the other side.AMS August 28, 1889, page 245.8

    The Chairman— How large a residuum or fraction is remaining that makes up the entire people?AMS August 28, 1889, page 245.9

    Dr. Morris—Unfortunately, I have not pre-pared myself upon that.AMS August 28, 1889, page 245.10

    The Chairman— How many did you estimate that the evangelicals numbered in 1886?AMS August 28, 1889, page 245.11

    Dr. Morris—Forty-two millions six hundred and forty-six thousand two hundred and seventy-nine.AMS August 28, 1889, page 245.12

    The Chairman— And the Catholics?AMS August 28, 1889, page 245.13

    Dr. Morris— The Catholic population 7,200000.AMS August 28, 1889, page 245.14

    The Chairman— The total being 50,000,000 in 1880, the gain between 50,000,000 and the true population in 1886, would represent all the other classes who belong to no church whatever?AMS August 28, 1889, page 245.15

    Dr. Morris— The atheists, those who entirely reject the Christian faith.AMS August 28, 1889, page 245.16

    The Chairman— You substantially include everybody in the evangelical estimate except the Catholics.AMS August 28, 1889, page 245.17

    Dr. Morris—I have not looked closely into that question.AMS August 28, 1889, page 245.18

    The Chairman—There were 50,000,000 people in 1880 and in 1886 there may have been 58,000,000 perhaps.AMS August 28, 1889, page 245.19

    Dr. Morris—Yes, I understand that this estimate allows for the population which is supposed to be purely atheistic, rejecting all Christian faiths. They are comparatively a small number.AMS August 28, 1889, page 245.20

    Senator George—Exclusive of the Mormons too?AMS August 28, 1889, page 245.21

    Dr. Morris— No, not the Mormons. They would be evangelical in one sense.AMS August 28, 1889, page 245.22

    Senator Palmer— You assume all who are not atheists and all who are not Catholics, to be evangelical?AMS August 28, 1889, page 245.23

    Dr. Morris—Yes, sir. Pretty nearly so.AMS August 28, 1889, page 245.24

    The Chairman— You include all who are known as agnostics perhaps as evangelical then?”AMS August 28, 1889, page 245.25

    Dr. Morris— The agnostics, properly speaking, are so small in number that they have scarcely entered into the computation.AMS August 28, 1889, page 245.26

    The Chairman— But the fact seems to be that there is a great body of people who are not communicants of churches, who have no special active affirmative faith in the evangelical creeds or in Roman Catholicism, which, I suppose, is nearly one-third of our people; I think it is.AMS August 28, 1889, page 245.27

    Senator Palmer— The agnostics are a religious people, more so than many of our people.AMS August 28, 1889, page 245.28

    The Chairman— Mr. Ingersoll is an agnostic. He leads a type of agnosticism in the country.AMS August 28, 1889, page 245.29

    Senator Palmer— He is atheistic.AMS August 28, 1889, page 245.30

    The Chairman— He is an agnostic.AMS August 28, 1889, page 245.31

    Senator George— That raises a very interesting question as to what is the Christian religion.”AMS August 28, 1889, page 245.32

    That is a fact. In that sentence Senator George hit the nail on the head, with a mighty stroke. The discussions of those who favor that proposed amendment show in miniature and in a very mild way, indeed, the contentions than would inevitably arise over the question as to what is the Christian religion, should that amendment ever be adopted. If the author of that resolution is wise, he will have learned wisdom by all this and will drop that thing forever.AMS August 28, 1889, page 245.33

    A. T. J.

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