THREE distinct considerations in the Constitution of the United States forbid Congress to touch this question. The first is well defined by George Bancroft in a letter which he wrote to Dr. Philip Schaff, August 30, 1887, which reads as follows:—
My Dear Dr. Schaff: I have yours of the 12th. By the Constitution no power is held by Congress except such as shall have been granted to it. Congress, therefore from the beginning, was as much without the power to make a law respecting the establishment of religion as it is now after the amendment has been passed. The power had not been granted and therefore did not exist, for Congress has no powers except such as are granted, but a feeling had got abroad that there should have been a bill of Rights and therefore to satisfy the craving, a series of articles were framed in the nature of a bill of Rights, not because such a declaration was needed, but because the people wished to see certain principles distinctly put forward as a part of the Constitution. The First Amendment, so far as it relates to an establishment of religion, was proposed without passion, accepted in the several States without passion, and so found its place as the opening words of the amendments in the quietest manner possible.
This is shown by the Tenth Amendment to the Constitution which says that “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.” As no power has been granted to Congress on the subject of religion, that is reserved to the States or to the people. That is where we ask that this shall be left,—just where the Constitution has left it. It is a question reserved to the States. It is for the State of Illinois alone, so far as any State can have anything to say upon the subject, to say whether that Fair shall be opened or shut on Sunday. If the State of Illinois should not say anything on the subject, it is still left with the people. It is for the people in their own capacity as such, to act as they please in the matter, without any interference or dictation by Congress.
Not only is that so on that point, but if the Constitution had not said a word on the subject of religion, there would have been no power in Congress to touch this question. But the people have spoken; the constitution has spoken and denied the right of the United States government to touch the question and has reserved that right to the States or to the people. Not only did it do that but it went further and actually prohibited the government of the United States from touching the question. This lack of power would have been complete and total without the prohibition, because the powers not delegated are reserved. But they went further and not only reserved this power but expressly prohibited Congress from exercising it. It is trebly unconstitutional for Congress to touch the question. It was so at the beginning of the government, and this is why we insist that this legislation shall be undone, and leave it where the Constitution has left it—to the States or to the people.
Mr. Houk,—a member of the Committee.—The language of the Constitution, I believe, is that Congress shall make no law respecting the establishment of religion.
Mr. Jones.—I am going to follow this question a little further and notice that amendment. The amendment does not read, as it is often misquoted, “Congress shall make no law respecting the establishment of religion;” but “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” There are two meanings in this clause. When the Constitution was made, all that it said upon this subject was that “no religious test shall ever be required as a qualification to any office or public trust under the United States.” Some of the States had established religions at the time; I think all except Virginia. Virginia had released herself in a campaign directly touching this question. The first part of the clause was intended to prohibit Congress from making any law respecting any of these religions which were established already in those States, and the second part of the clause prohibits Congress from touching the subject of religion on its own part, in any way. In the State of Virginia from 1776—with the exception of the interval when the war was highest—to December 26, 1787, there was a campaign conducted over the same question that is now involved in this legislation. The English Church was the established church in Virginia, and the Presbyterians, the Quakers, and the Baptists sent a memorial to the General Assembly of Virginia, asking that as the Colonies had declared themselves free and independent of British rule in civil things, so the State of Virginia should declare itself free from British rule in religious things and that they should not be taxed to support a religion which they did not believe, nor even any religion which they did believe. And the English Church was disestablished. Then a movement was made to establish the Christian religion and to legislate in favor of the Christian religion by passing a bill establishing a provision for teachers of that religion. Madison and Jefferson took the opposition to that bill, and by vigorous efforts defeated it, and in its place secured the passage of a bill establishing religious freedom in Virginia, which is the model of all the state constitutions from that day to this, on the subject of religion and the State.
Now then, that campaign in Virginia against the establishment of the Christian religion there, embodied the same principle that is involved in this legislation of today, and as that was distinctly shut out, so we ask that this shall be also and Congress and the Government step back to the place where it was before and where it belongs. Madison went right out of that campaign into the convention which formed the Constitution of the United States, and carried with him into that convention the principles which he had advocated in the campaign and put those principles into the United States Constitution, and the intention of all was, and is, that Congress shall have nothing at all to do with the subject of religious observances.
Washington in 1797, made a treaty with Tripoli, which explicitly declared that “the government of the United States is not in any sense founded upon the Christian religion.” And when Congress has legislated upon this question with direct reference to the Christian religion, therein again it has gone contrary to the express intent of those who made the Constitution and established the supreme law, as expressed in their own words. And for this reason we ask that the thing shall be undone and Congress put the government right back where it was before that legislation was established, and leave the question where it belongs.
The Constitution prohibits this legislation; and when the Constitution prohibits it, then ought not the legislation to be undone?