A GOOD deal of ridicule has, by the advocates of Sunday laws, been heaped upon all constitutional arguments against Sunday legislation; but why not answer the constitutional objections rather than ridicule them, if they can be answered?
It has been said that the various Supreme Court decisions touching this question are a sufficient answer. But are they? Of course such decisions show clearly the strength of religious sentiment and its influence even upon Supreme Courts; but they by no means prove that such legislation is constitutional in the sense of being in harmony with the purpose and intent of the Federal Constitution or of the State constitutions containing similar guarantees of freedom of conscience.
To understand the real purpose and intent of any constitution, we must, as Chief-Justice Waite remarked in 1878, go, not to recent decisions, but to the history of the times in which it was adopted, and give to the language of such constitution the meaning that it had at that time. By this rule we shall find that the First Amendment to the Federal Constitution was designed not only to make impossible the setting up of a State Church, but to forbid religious legislation, i. e., legislation upon religious questions.
The term “religion” is not defined in the Constitution, but the Virginia Declaration of Rights, adopted in 1776, furnishes us a definition as follows: “Religion, or the duty we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction,” etc. This, then, is what the men who were largely instrumental in securing the adoption of the First Amendment to the National Constitution meant by “religion,” and in the light of this definition that amendment would mean just what it was intended to mean, if it read, “Congress shall make no law regarding the duty which we owe to our Creator, or the manner of discharging it.”
That this is the meaning of the First Amendment is evident also from the fact that the exact language of the Virginia Bill of Rights was used in the form of the amendment proposed by three of the six States which proposed an amendment on this subject, namely, Virginia, North Carolina, and Rhode Island; while New Hampshire used equally unmistakable language, namely, “Congress shall make no law touching religion, or to infringe the rights of conscience.” It was evidently that the purpose of the several States to utterly prohibit to Congress all legislation upon religious questions, and no number of decisions, even by the Supreme Court, can make it otherwise. This is not so much a question of law as of fact, to be tried by the jury of the people rather than by the Justices of our Supreme Courts.
That the First Amendment to the Constitution was designed not only to keep Church and State separate in the sense of preventing an ecclesiastical establishment, but in the sense also of separating religion from the State—making the Government absolutely secular, is evident not only from the facts cited, but also from other considerations. In fact, this seems to have been the universal opinion until in recent years degenerate sons of noble fathers have sought to subvert the grand charter which those sires gave to their posterity.
In 1797, Washington and his cabinet and the United States Senate declared in the Treaty with Tripoli: “The Government of the United States is not in any sense founded upon the Christian religion.” It is, perhaps, not saying too much to assert that President Washington and his advisers were in a position, at least as to the point of time, to understand the intent of the Constitution very much better than the Supreme Court of to-day. They knew what it meant, for they helped to make it, and were familiar with the reasons for its adoption and for the adoption of the First Amendment; and it is perfectly evident that they did not see in it much that the Supreme Court has professed to find there.