The Constitution and Separation of Church and State

PART V

In 1829, William Rawle, LL.D. discussed first amendment rights:

"Of the amendments already adopted, (for which see the appendix,) the eight first in order fall within the class of restrictions on the legislative power, some of which would have been implied, some are original, and all are highly valuable. Some are also to be considered as restrictions on the judicial power.

The constitutions of some of the states contain bills of rights; others do not. A declaration of rights, therefore, properly finds a place in the general Constitution, where it equalizes all and binds all.

Each state is obliged, while it remains a member of the Union, to preserve the republican form of government in all its strength and purity, The people of each state, by the amended constitution, pledge themselves to each other for the sacred preservation of certain detailed principles, without which the republican form would be impure and weak.

They will now be viewed in succession.

The first amendment prohibits congress from passing any law respecting an establishment of religion, or presenting the free exercise of it. It would be difficult to conceive on what possible construction of the Constitution such a power could ever be claimed by congress. The time has long passed by when enlightened men in this country entertained the opinion that the general welfare of a nation could be promoted by religious intolerance, and under no other clause could a pretence for it be found. Individual states whose legislatures are not restrained by their own constitutions, have been occasionally found to make some distinctions; but when we: advert to those parts of tile Constitution of the United States, which so strongly enforce the equality of ail our citizens, we may reasonably doubt whether the denial of the smallest civic right under this pretence can be reconciled to it. In most Of the governments of Europe, some one religious system enjoys a preference, enforced with more or less severity, according to circumstances. Opinions and modes of worship differing from those which form the established religion, are sometimes expressly forbidden, sometimes punished, and in the mildest cases, only tolerated without patronage or encouragement. Thus a human government interposes between the Creator and his creature, intercepts the devotion of the latter, or condescends to permit it only under political regulations. From injustice so gross, and impiety so manifest, multitudes sought an asylum ill America, and hence she ought to be the hospitable and benign receiver of every variety of religious opinion. It is true, that in her early provincial stage, the equality of those rights does not seem to have been universally admitted. Those who claimed religious freedom for themselves, did not immediately perceive that others were also entitled to it; but the history of the stern exclusion or reluctant admission of other sects in several of the provinces, would be an improper digression in this work. In tracing the annals of some of the provinces, it is pleasing to observe that in the very outset, their enlightened founders publicly recognised the perfect freedom of conscience. There was indeed sometimes an inconsistency, perhaps not adverted to in the occlusion of public offices to all but Christians, which was the case in Pennsylvania, but it was then of little practical importance. In the constitution adopted by that state in 1776, the same inconsistency, though expressed in language somewhat different, was retained, but in her present constitution, nothing abridges, nothing qualifies, nothing defeats, the full effect of the original declaration. Both tile elector and the elected are entitled, whatever their religious tenets may be, to the fullest enjoyment of political rights, provided in the latter description, the party publicly declares his belief in the being of a God, and a future state of rewards and punishments. This qualification is not expressly required of an elector, and perhaps was introduced in respect to those elected, chiefly for the purpose of more particularly explaining the sense of a preceding section. It is indeed to such a degree doubtful whether any can be found so weak and depraved as to disbelieve these cardinal points of all religions, that it can scarcely be supposed to have been introduced For any other purpose, (1)

Just and liberal principles on this subject, throw a lustre round the Constitution in which they are found, and while they dignify the nation, promote its internal peace and harmony. No predominant religion overpowers another, the votaries of which are few and humble; no lordly hierarchy excites odium or terror; legal persecution is unknown, and freedom of discussion, while it tends to promote the knowledge, contributes to increase the fervour of piety.

The freedom of speech and of the press forms part of the same article, and in part relates to the same subject; it embraces all matters of religious, moral, political, or physical discussion . . . Tacitus, in gloomy meditation on the imperial despotism of Rome, exclaims, " How rare are those happy times when men may think what they please and say what they think." Under the denial of such rights, life is indeed of little value. The foundation of a free government begins to be undermined when freedom of speech on political subjects is restrained; it is destroyed when freedom of speech is wholly denied. The press is a vehicle of the freedom of speech. The art of printing illuminates the world, by a rapid dissemination of what would otherwise be slowly communicated and partially understood. This may easily be conceived, if we were to figure to ourselves the total suppression of printing for even a short time in this country. Our newspapers are now more numerous than such publications are in an equal amount of population in any other part of the world. Wherever a new settlement is formed, and every year presents many such, a printing press is established as soon as a sufficient number of inhabitants is collected. Information is the moral food, for which the active American intellect ever hungers."

Footnote

(1) There are now but two states in the Union whose constitutions contain exclusive provisions in regard to religious opinions. In Maryland, no one who does not believe in the Christian religion can be admitted to an office of trust or profit. In North Carolina, the same exclusion is extended to all who deny the truth of the protestant religion. But in every other respect than the capacity to hold such offices, all stand on the same footing in both states.

Source of Information:

A View of the Constitution of the United States of America, by William Rawle, LL.D. Second Edition Philadelphia, Philip H. Nichlin, Law Bookseller No. 175, Chestnut Street, (1829)--the first edition was apparently published in 1825--pp 120-123.

January 19, 1829

 

Mr. Johnson of Kentucky, made the following report:

"The committee to whom were referred the several petitions on the subject of mails on the Sabbath, or first day of the week, report:

That some respite is required from tile ordinary vocations of life is an established principle, sanctioned by the usages of all nations, whether Christian or pagan. One day in seven has also been determined upon as the proportion of time; and in conformity with the wishes of a great majority of the citizens of this country, the first day of the week, commonly called Sunday, has been set apart to that object. The principle has received the sanction of the national legislature, so far as to admit a suspension of all public business on that day, except in cases of absolute necessity, or of great public utility. This principle the committee would not wish to disturb. If kept within its legitimate sphere of action, no injury can result from its observance. It Should, however, be kept in mind that the proper object of government is to protect all persons in the enjoyment of their religious as well as civil rights, and not to determine for any whether they shall esteem one day above another, or esteem all days alike holy.

We are aware that a variety of sentiment exists among the brood citizens of this nation, on the subject of the Sabbath day; and our government is designed for the protection of one as much as another. The Jews, who in this country are as free as Christians, and entitled to the same protection from the laws, derive their obligation to keep the Sabbath day from the fourth commandment of their decalogue, and in conformity with that injunction pay religious homage to the seventh day of the week, which we call Saturday. One denomination of Christians among us, justly celebrated for their piety, and certainly as good citizens as any other class, agree with the Jews in the moral obligation of the Sabbath, and observe the same day. There are, also, many Christians among us who derive not their obligation to observe the Sabbath from the decalogue, but regard the Jewish Sabbath as abrogated. From the example of the apostles of Christ, they have chosen the first day of the week instead of that day set apart in the decalogue, for their religious devotions. These have generally regarded the observance of the day as a devotional exercise, and would not more readily enforce it upon others than they would enforce secret prayer or devout meditations. Urging the fact that neither their Lord nor his disciples, though often censured by their accusers for a violation of the Sabbath, ever enjoined its observance, they regard it as a subject on which every person should be fully persuaded in his own mind, and not coerce others to act upon his persuasion. Many Christians, again, differ from these, professing to derive their obligation to observe the Sabbath from the fourth commandment of the Jewish decalogue, and bring the example of the apostles, who appear to have held their public meetings for worship on the first day of the week, as authority for so far changing the decalogue as to substitute that day for the seventh. The Jewish government was a theocracy, which enforced religious observances; and though the committee would hope that no portion of the citizens of our country would willingly introduce a system of religious coercion in our civil institutions, the example of other nations should admonish us to watch carefully against its earliest indication.

With these different religious views, the committee are of opinion that Congress cannot interfere. It is not the legitimate Province of the legislature to determine what religion is true, or what false. Our government is a civil, and not a religious, institution. Our Constitution recognizes in every person the right to choose his own religion, and to enjoy it freely without molestation. Whatever may be the religious sentiments of citizens, and however variant, they are alike entitled to protection from the government, so long as they do not invade the rights of others.

The transportation of the mail on the first day of the week, it is believed, does not interfere with the rights of conscience. The petitioners for its discontinuance appear to be actuated by a religious zeal, which may be commendable if confined to its proper sphere; but they assume a position better suited to an ecclesiastical than to a civil institution. They appear in many instances to lay it down as an axiom that the practice is a violation of the law of God. Should Congress in legislative capacity adopt the sentiment, it would establish the principle that the legislature is a proper tribunal to determine what are the laws of God. It would involve a legislative decision on a religious controversy, and on a point in which good citizens may honestly differ in opinion, without disturbing the peace of society or endangering its liberties. If this principle is once introduced, it will be impossible to define its bounds. Among all the religious persecutions with which almost every page of modern history is stained, no victim ever suffered but for the violation of what government denominated the law of God. To prevent a similar train of evils in this country the Constitution has wisely withheld from our government the power of defining the divine law. It is a right reserved to each citizen; and while he respects the rights of others, he cannot be held amenable to any human tribunal for his conclusions.

Extensive religious combinations to effect a political object are, in the opinion of the committee, always dangerous. This first effort of the kind calls for the establishment of a principle which, in the opinion of the committee, would lay the foundation for dangerous innovation upon the spirit of the Constitution, and upon the religious rights of the citizens. If admitted, it may be justly apprehended that the future measures of the government will be strongly marked, if not eventually controlled, by the same influence. All religious despotism commences by combination and influence; and when that influence begins to operate upon the political institutions of a country, the civil power soon bends under it; and the catastrophe of other nations furnishes an awful warning of the consequences.

Under the present regulations of the Post-office Department, the rights of conscience are not invaded. Every agent enters voluntarily, and it is presumed conscientiously, into the discharge of his duties, without intermeddling with the conscience of another. Post-offices are so regulated that but a small proportion of the first day of the week is required to be occupied in official business. In the transportation of the mail on that day, no one agent is employed many hours. Religious persons enter into the business without violating their own consciences or imposing any restraints upon others. Passengers in the mail stages are free to rest during the first day of the week, or to pursue their journeys at their own pleasure. While the mail is transported on Saturday, the Jew and the Sabbatarian may abstain from any agency in carrying it, on conscientious scruples. While it is transported on the first day of the week, another class may abstain, from the same religious scruples. The obligation of government is the same on both these classes; and the committee can discover no principle on which the claims of one should be more respected than those of other; unless it be admitted that the consciences of the minority are less sacred than those of the majority.

It is the opinion of the committee that the subject should be regarded simply as a question of expediency, irrespective of its religious bearing. In this light it has hitherto been considered. Congress has never legislated upon the subject. It rests, as it ever has done, in the legal discretion of the Postmaster-General, under the repeated refusals of Congress to discontinue the Sabbath mails. His knowledge and judgment in all the concerns of that department will not be questioned. His intense labors and assiduity have resulted in the highest improvement of every branch of his department. It is practiced only on the great leading mail routes, and such others as are necessary to maintain their connections. To prevent this, would, in the opinion of the committee, be productive of immense injury, both in its commercial and political, and also its moral, bearings.

The various departments of government require, frequently in peace, always in war, the speediest intercourse with the remotest parts of the country; and one important object of the mail establishment is to furnish the greatest and most economical facilities for such intercourse. The delay of the mails one whole day in seven would require the employment of special expresses, at great expense, and sometimes with great uncertainty.

The commercial, manufacturing, and agricultural interests of the country are so intimately connected as to require a constant and most expeditious correspondence betwixt all our seaports, and betwixt them and the most interior settlements. The delay of the mails during the Sunday would give occasion for the employment of private expresses, to such an amount that probably ten riders would be employed where one mail stage would be running on that day, thus diverting the revenue of that department into another channel, and sinking the establishment into a state of pusillanimity incompatible with the dignity of the government of which it is a department.

Passengers in the mail stages, if the mails are not permitted to Proceed on Sunday, will be expected to spend that day at a tavern upon the road, generally under circumstances not friendly to devotion, and at an expense which many are but poorly able to encounter. To obviate these difficulties, many will employ extra carriages for their conveyance, and become the bearers of correspondence, as more expeditious than the mail. The stage proprietors will themselves often furnish the travelers with those means of conveyance; so that the effect will ultimately be only to stop the mail, while the vehicle which conveys it will continue, and its passengers become the special messengers for conveying a considerable portion of what otherwise constitutes the contents of the mail.

Nor can the committee discover where the system could consistently end. If the observance of holiday becomes incorporated in our institutions, shall we not forbid the movement of an army; prohibit an assault in time of war; lay an injunction upon our naval officers to lie in the wind while upon the ocean on that day? Consistency would seem to require it. Nor is it certain that we should stop here. If the principle is once established that religion, or religious observances, shall be interwoven with our legislative acts, we must pursue it to its ultimatum. We shall, ii consistent, provide for the erection of edifices for worship of the Creator, and for the support of Christian ministers, If we believe such measures will promote the interests of Christianity. It is the settled conviction of the committee, that the only method of avoiding these consequences; with their attendant train of evils, is to adhere strictly to the spirit of the Constitution, which regards the general government in no other light than that of a civil institution, wholly destitute of religious authority.

What other nations call religious toleration we call religious rights. They are not exercised in virtue of governmental indulgence, but as rights, of which government cannot deprive any portion of citizens, however small. Despotic power may invade those rights, but justice still confirms them.

Let the national legislature once perform an act which involves the decision of a religious controversy, and it will have passed its legitimate bounds The precedent will then be established, and the foundation laid, for that usurpation of the divine prerogative in this country which has been the desolating scourge to the fairest portions of the Old World. Our Constitution recognizes no other power than that of persuasion, for enforcing religious observances. Let the professors of Christianity recommend their religion by deeds of benevolence, by Christian meekness, by lives of temperance and holiness. Let them combine their efforts to instruct the ignorant, to relieve the widow and the orphan, to promulgate to the world the gospel of their Saviour, recommending its precepts by their habitual example; government will find its legitimate object in protecting them. It cannot oppose them, and they will not need its aid. Their moral influence will then do infinitely more to advance the true interests of religion, than any measure which they may call on Congress to enact.

The petitioners do not complain of any infringement upon their own rights. They enjoy all that Christians ought to ask at the hands of any government -- protection from all molestation in the exercise of their religious sentiments.

Resolved, That the committee be discharged from any further consideration of the subject.

The report and resolution were concurred in by the Senate.

Source of Information:

"20th Congress, 2nd Session, Senate Report on Sunday Mails, Communicated to the Senate, January 19. 1829." American State Papers, Class VII, page 225. American State Papers Bearing On Sunday Legislation, Revised and Enlarged Edition, Compiled and Annotated by William Addison Blakely, Revised Edition Edited by Willard Allen Colcord, The Religious Liberty Association, Washington, D.C. 1911, pp 233-244.

---

January 8, 1830

To the Honorable, the Senate and House of Representatives of the United Stales of America in Congress assembled:

The undersigned, memorialists of the town of Newark, county of Essex, and State of New Jersey, being apprized of the numerous petitions presented to your honorable body, praying a repeal of the present laws for the transportation of the mails and the opening of the post-offices on the first day of the week, beg leave (in accordance with their sense of duty) humbly to memorialize your honorable body, and pray that no such repeal be made, nor any law be enacted interfering with the Post-office Department, so as to prevent the free passage of the mail on all days of the week, or to exclude any individual from the right to receive his papers on the first, as well as on the seventh day.

Notwithstanding your memorialists have the fullest confidence in the wisdom and integrity of our national Legislature, they are induced to memorialize your honorable body at this time, from a fear lest the reiterated efforts of bigotry and fanaticism should finally prevail on your honorable body to legislate upon a subject which your memorialists consider is, by the Constitution of these States and the laws of nature, left free; and which, for the welfare of mankind, should be maintained so. Nor can they at this time refrain from expressing their astonishment at, and their disapprobation of, the reiterated and untiring efforts of a part of the community, who, through misguided zeal or ecclesiastical ambition, essay to coerce your honorable body into a direct or violation of the principles of the Constitution, by the enactment of laws, the object of which would be to sustain their peculiar tenets or religious creeds to the exclusion of others ; thereby uniting ecclesiastical and civil law, and leading ultimately to the abhorrent and anti-republican union of church and state.

Your memorialists would not presume to remonstrate, were it not that their opponents (after a most signal defeat in last Congress) have renewed their petitions with a vigor increased by disappointment, and a spirit as perseveringly determined as their premises are illiberal and unwarrantable.

Your memorialists approve of morality, reverence religion, and grant to all men equal rights, and are governed by the principles of our Constitution and the laws of our land; but we deprecate intolerance abhor despotism, and are totally opposed to all attempts of the religions of any sect to control our consciences.

Nor can your memorialists perceive wherein their opponents are deprived of their liberty of conscience by the uninterrupted course of the mails, for if it be right for them to travel on the first day of the week, it cannot be wrong for the mails; if it be consistent for them to do their business on the first day of the week, it cannot be inconsistent for the mails to be made up and opened, and papers delivered, on the same day; if the traveling they do, and the labors they perform, are matters of necessity, and therefore admissible, your memorialists humbly suggest whether the interests of a vast majority of the citizens the United States, conveyed by mails, are not matters of as great necessity?

Your memorialists, in accordance with these views beg leave to protest against any interference with the transportation of the mails, or :he distribution of letters at the post-offices, on the first day of the week. And your memorialists, as in duty bound, will ever pray, etc.

Source of Information:

21st Congress, 1st Session, Sunday Legislation, an Anti-republican Union of Church and State. American State Papers: Documents, Legislative and Executive, of the Congress of the United States, Class VII, pages 238, 239 Selected and edited, under the authority of Congress, by Waiter Lowrie, Secretary of the Senate, and Waiter S. Franklin, Clerk of the House of Representatives. Published at Washington, 1834. American State Papers Bearing On Sunday Legislation, Revised and Enlarged Edition, Compiled and Annotated by William Addison Blakely, Revised Edition Edited by Willard Allen Colcord, The Religious Liberty Association, Washington, D.C. 1911, pp 277-79.

See Part VI of this topic for additional reference materials.