JUDICIAL INVENTION AND FIAT

And yet all over the United States Sunday legislation is held by courts to be constitutional! How can this be? The is that it is solely by judicial intention and fiat.SLOC 18.3

Note: It is not by judicial construction or interpretation of the Constitutions, but wholly by judicial invention and that as to the character of the legislation. That is to say: By judicial invention and fiat an utterly new and foreign character is given to Sunday legislation; and then upon this new and foreign ground the legislation is held to he constitutional. If this new and foreign ground were in truth the original and native ground, even then the constitutionality of such legislation would be open to question. But not in any sense is the new and foreign ground true. It is a sheer invention, and false both as to principle and to the facts.SLOC 19.1

This judicial invention and fiat of new and foreign ground for Sunday legislation is the proposition that it is for the physical benefit, for the promotion of the health and for the restoration of the wasted energies, of the people; that it is for the protection of labor, and so is constitutional “as a police regulation” and a “purely civil rule”!SLOC 19.2

Now everybody who knows but the A B C of Sunday legislation, knows full well that no Sunday law in the world was ever enacted with any such intent, or for any such purpose, or upon any such ground, as that; but that every Sunday law ever in the world was enacted solely because of its religious and ecclesiastical character, with every physical and civic element specifically excluded.SLOC 19.3

The State of Idaho is an illustration in point, and being the very latest, is strictly pertinent. In the very spirit, and with the very aim, of the bishops in the time of Constantine, an ecclesiastical clique, not of the State of Idaho, framed for Idaho a Sunday Bill and carried it to the Legislature of Idaho and got it enacted into the law of Idaho. And then under a Constitution declaring thatSLOC 20.1

“The exercise and enjoyment of religious faith and worship shall forever be guaranteed; and no person shall be denied any civil or political right, privilege, or capacity on account of his religious opinions; ... nor shall any preference be given by law to any religious denomination or mode of worship,“SLOC 20.2

the Supreme Court of Idaho held that religious and ecclesiastical statute to be “constitutional.”SLOC 20.3

The State of Washington is another illustration. The Constitution of that State declares thatSLOC 20.4

“Absolute freedom of conscience in all matters of religious sentiment, belief, and worship shill he guaranteed to every individual, and no one shall be molested or disturbed in person or property on account of religion.”SLOC 20.5

When in 1889 this constitutional provision was framed, it was the unanimous intent of its framers that it should exclude Sunday legislation equally with every other form of religion in law. The writer of this book was present with the committee of the Constitutional Convention when that provision was framed. And I personally know that such was the intent of the framers of it, because this very subject of Sunday legislation was particularly considered by the committee and it was held by the committee unanimously that this constitutional provision as framed would, as intended, exclude Sunday legislation. And yet under that Constitution the Supreme Court of the State of Washington has held Sunday legislation to be “constitutional.”SLOC 21.1

Thus with Sunday legislation actually framed by ecclesiastics with no other than religious and ecclesiastical intent, and with constitutional provisions framed with direct intent to prohibit it, the courts by sheer judicial invention and fiat make it “constitutional.”SLOC 21.2

But every such decision is plainly in open disregard of one of the very first principles, and of “the universally admitted rule,” of judicial action—the principle and the rule, that “the intention of the law-maker is the law”; that “the law must he construed according to the intention of the law-maker”; and that “a law can have no meaning beyond the intent of those who made it.”SLOC 21.3

This principle, that must ever, in justice, guide in the construction of statutes as well as constitutions, is authoritatively stated as follows:SLOC 22.1

“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,” p. 67.SLOC 22.2

The principle applies with equal force to the construction of a statute, as to the construction of a Constitution. And whether 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 its framers, anywhere in human history or experience.SLOC 22.3