|The Constitutional Principle: Separation of Church and State|
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"If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a law, in like Manner as if he had signed it . . . "
Article I, Section 7
Some Accommodationists argue that the words "Sundays excepted" are a legal recognition of the Christian Sabbath and, therefore, are evidence that the founders did not intend strict separation of church and state. Some even go so far as to claim that these words "prove" this nation is founded on the Christian religion.
A look at the plain language of the phrase "Sundays excepted" reveals a less sinister motive for its inclusion in the Presidential veto power clause. Ten days, with Sundays excepted, actually gave the President a full ten days - two work weeks - within which to decide to sign or veto a Bill. If the ten-day count began on a Friday, the President got 12 days (with two Sundays excepted). If the count began on any other day, the President got 11 days (with one Sunday excepted).
The advantage of having two weeks within which to exercise the veto power would have been evident. Above all, excepting Sundays allowed the President to exercise his veto power in spite of various Sunday laws that were in place in most of the states.
For example, many states prohibited traveling on Sundays, and Presidents were not immune to prosecutions for violation of such laws. In fact, the Columbian Centinel of December 1789 reported that just such a fate befell President George Washington when he decided to travel through Massachusetts on a Sunday.
If the President was outside of the Capitol when Congress handed over a Bill to the Executive office, then granting him ten days with Sundays excepted to exercise the veto power would have given him plenty of time to travel to the seat of government, communicate with proponents and opponents of a Bill, and veto or sign the Bill, as he chose.
This interpretation of "Sundays excepted" seems logical in comparison with an earlier draft of Article I, Section 7 which allowed for only seven days within which the President could exercise the veto power. In this earlier draft, Sundays were not excepted, so it does not appear that the drafters were too concerned with the "Sabbath keepers." But allowing the President so little time to exercise the veto power could have created situations ripe for political maneuvering.
The Presidential veto power is a qualified power, established by the Constitution, and limited only by time, not by subsequent laws passed by Congress or decisions handed down by the high court. In addition, the veto power is, itself, a limiting power - acting as a check on the power and authority of Congress. With a 7-day veto power, Congress could have had the opportunity of handing down a Bill at a time when the President was out of the Capitol, and when communication and travel time would have been slowed or blocked by obstacles such as State prohibitions against traveling or conducting business on Sundays. With 10 full working days, Congress would not have had that same opportunity.
In any case, a look at the historical record provides no information at all about the framers' intent as to why the words "Sundays excepted" were added to this clause. No contemporary historical documentation exists that provides any insight into its intended meaning up to and including Joseph Story's "Commentaries on the Constitution" (1833). While Story quotes the exact language of Article I, Section 7 in his work, he fails to discuss the meaning and purpose of "Sundays excepted." Therefore, any attempt by modern scholars to explain this clause's function or purpose based on framers' intent alone must necessarily rely on speculation. The clause, itself, cannot be read as either an establishment of the Sabbath, or even as legal recognition of the Sabbath. First, the clause appears to have been subordinate to a more important issue at that time: the number of days the President would have to veto bills before they automatically became law.
Briefly, the Convention debated the power of all three branches of government during most of July 1787 - although throughout this month there was no report of any discussion of the number of days the President would have to exercise the veto power:
July 21, 1787 - "RESOLVED, That the national executive shall have a right to negative any legislative act, which shall not be afterwards passed, unless by two third parts of each branch of the national legislature."
In the entry for July 26, 1787, the Convention resolved to draft a written version of the Constitution as it had been constructed up to that point. It took them eleven days to come up with a draft.
On August 6, a written draft of the entire Constitution was presented to the Convention for the first time. The document was voted on (all 23 articles) and was "passed in the negative": Pennsylvania, Maryland, Virginia, voting "aye," and New Hampshire, Massachusetts, Connecticut, North Carolina and South Carolina voting "nay." (New York, New Jersey, Delaware, Georgia, and Rhode Island didn't vote.) However, there was no discussion concerning which of the articles the 'nay' voters objected to or even why the entire document was not adopted.
On Monday, August 6, the draft of the veto power clause was read as follows:
Article VI, Sect. 13, Every bill, which shall have passed the House of Representatives and the Senate, shall, before it become a law, be presented to the President of the United States for his revision: if, upon such revision, he approve of it, he shall signify his approbation by signing it: But if, upon such revision, it shall appear to him improper for being passed into a law, he shall return it, together with his objections against it, to that House in which it shall have originated, who shall enter the objections at large on their journal and proceed to reconsider the bill. But if after such reconsideration, two thirds of that House shall, notwithstanding the objections of the President, agree to pass it, it shall together with his objections, be sent to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of the other House also, it shall become a law. But in all such cases, the votes of both Houses shall be determined by yeas and nays; and the names of the persons voting for or against the bill shall be entered on the journal of each House respectively. If any bill shall not be returned by the President within seven days after it shall have been presented to him, it shall be a law, unless the legislature, by their adjournment, prevent its return; in which case it shall not be a law.
This language was approved by the Convention without any discussion on the significance or importance of the number of days the president had to exercise the veto power.
On Wednesday, August 15, the Convention revisited this issue and amended the clause as follows:
"Ten days (Sundays excepted)" instead of "seven" were allowed the President for returning with his objections. (New Hampshire and Massachusetts voted against it.)
Even on this date, there is no reported discussion by the members of the Convention concerning the importance or significance of the number of days the President would have to exercise the veto power. Nor was there any discussion surrounding the inclusion of the words "Sundays excepted."
There is no indication as to who originally proposed the seven-day period of time, who suggested the three-day extension, or who proposed that "Sundays be excepted." Had any particular members of the Convention felt strongly that Sundays should be excepted for a religious or spiritual reason, surely their comments would have ended up in the record. After all, such reasoning would have been unique to the Convention members who had taken great pains to eliminate all evidence of religion from the Constitution they were drafting.
In addition, representatives from New Hampshire and Massachusetts were the only members present who voted "nay," to the wording of the clause on August 15, but there is no record as to the reason for their objection. (Rufus King and Nathaniel Gorham represented Mass, while John Langdon and Nicholas Gilman represented N.H.) Again, there is no evidence that their objection was to the President having the power of the veto, to the extension of the veto power to ten days instead of seven, or to the exception of Sundays.
The "Sundays excepted" clause is inexplicable as an attempt to legislate a Sabbath. Most states had Sunday laws at the time of the Constitution and these laws were quite clear about equating Sunday with the Sabbath; it would have been a trivial matter to copy the language of these laws, or to make specific provisions for shutting down portions of the federal government on Sunday. But nothing in the Constitution does this. On the contrary, the "Sundays excepted" clause applies only to the President, and does nothing but exempt Sunday from the 10 days he has to veto legislation before it becomes law. Thus the language of this clause establishes nothing and coerces no one: it falls short of an attempt to legislate the Sabbath.
But doesn't the "Sundays excepted" clause recognize Sunday as Sabbath? As written, the clause is silent about the purpose of the Sunday exception; legally, it does not recognize any day (let alone Sunday) as the Sabbath. More generally, if the framers wanted to emphasize the religious significance of Sunday they would have referenced the Sabbath. Instead, they referenced "Sunday." The founders chose language that would distance their Constitution from those countries' unwritten constitutions that endorsed church and state unions. This approach would be expected if the founders wanted to ensure that the clause and the Constitution would not be read as an endorsement of any one religion or religion in particular.
Why was Sunday the only day excepted from the 10-day count? Some propose that the purpose of the clause was to ensure that strict Sunday-keepers would not be inconvenienced by their religious beliefs. They argue that there would be no reason to build in protection for Saturday or Friday-keepers since there was no chance that they would be elected to office. However, there is evidence that the founders did seriously entertain the possibility that a Saturday or Friday-keeper would be elected as President of the United States.
As to a religious test, had the article which excludes it provided none but what had been in the states heretofore, I would not have objected to it. It would secure religion. Religious liberty ought to be provided for. I acquiesce with the gentleman, who spoke, on this point, my sentiments better than I could have done myself. For my part, in reviewing the qualifications necessary for a President, I did not suppose that the pope could occupy the President's chair. But let us remember that we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it. I see nothing against it. There is disqualification, I believe, in every state in the Union -- it ought to he so in this system.
(Mr. Lancaster, Delegate to the North Carolina Constitutional Convention Wednesday, July 30, 1788 The Debates of The Several State Conventions, 1787, by Jonathan Elliott, J B Lippincott Company 1888, page 215)
Not that there weren't voices in the states opposing religious tests. The Catholic John Carroll of Maryland noted acerbically in 1787 that even as many state constitutions had been drafted in 1776 reserving public office to Protestants, "the American army swarmed with Roman Catholic soldiers." People of all faiths fought in the Revolution, he noted, assuming that they would not be "shackled by religious tests" and would be "entitled to a participation in the common blessings which crowned their efforts" once they returned to their states. Jews in Pennsylvania petitioned the state government in 1783 and 1787 to remove the requirement that officeholders be Protestants and believers in the New Testament, since it "deprives the Jews of the most eminent right of freemen." (The Godless Constitution, page 32)
"They suppose that if there be no religious test required, pagans, deists, and Majometans might obtain offices among us, and the Senators and representatives might all be pagans." (Mr. Henry Abbot, Delegate to the N C state Constitutional Convention, Wed. 30 July 1788, The Debates of The Several State Conventions, 1787, by Jonathan Elliott, J B Lippincott Company 1888, page 192)
There were numerous claims that the ban on religious tests would open all potential offices in the national government to Catholics, Jews, infidels, etc. Even in his day, some believed Jefferson was an infidel, atheist or worse.
In addition, the veto power is only one of the President's powers. If the concern was that a President who keeps the Sabbath should not be made to work on the Sabbath, then all the powers of the president would have carried the Sundays exception. How could the President function when other events may take place on Sunday requiring him to make decisions or issue orders for, among other things, national security? If Pearl Harbor had taken place on Saturday, December 6, is there any doubt that President Roosevelt would have been in Congress on Sunday, December 7 asking for a declaration of war, instead of waiting until Monday, December 8?
In Conclusion, there is no evidence that the clause "Sundays excepted" was a legal recognition of the Christian Sabbath or that the founders did not intend strict separation of church and state by its inclusion in the Constitution.
History of the "Sundays excepted" argument
The Sunday Mail argument