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The "Sundays Excepted" Clause and the Sabbath.

Research by Jim Allison and Susan Batte.
Article I, section 7 of the Constitution provides that "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..." Some accommodationists argue that the words "Sundays excepted" are a legal recognition of the Christian Sabbath and, hence, are evidence that the founders did not intend strict separation of church and state. While it's reasonable to assume that the Christian Sabbath is in view here, accommodationists are wrong in claiming that the clause "recognizes" a Sabbath or declares a day of rest. On the contrary, we suggest that the most likely interpretation of the clause is separationist: a mechanism to shield the President from the effects of Sunday laws in the several states.

What do we know about the "Sundays excepted" clause?

Sadly, the historical record provides us little information about the original intent of the "Sundays excepted" clause. The clause appears without comment in the records of the Constitutional Convention on August 15, 1787 as an amendment to a proposed draft of the Constitution (see below). Early legal authorities are silent on the clause, up to and including Joseph Story's famed Commentaries on the Constitution (1833). While Story quotes the exact language of Article I, Section 7 in his work, he does not discuss the meaning and purpose of "Sundays excepted". Therefore, any attempt by modern scholars to explain this clause's function or purpose based on the framers' intent alone will necessarily rely on speculation.

One thing that seems certain is that the "Sundays excepted" clause was subordinate in the minds of the framers to the more important issue of how many days the President would have to veto bills before they automatically became law. On August 6, 1787 the Constitutional Convention approved language that gave the President the right to veto legislation passed by Congress, subject to Congressional override. This language gave the President seven days to exercise his veto power from the time a bill reached his desk:

For whatever reason, the seven day limit did not sit well with the Convention. Nine days later, on August 15, the Convention revisited the issue and amended the proposed Constitution as follows:

The "Sundays excepted" clause, in other words, appears to have been part of a larger effort to give the President additional time to veto Congressional legislation.

The records of the Convention shed no additional light on the "Sundays excepted" clause. No debate on the August 15 amendment is recorded. We do not know who proposed the ten day limit, or whether the same person who proposed the limit also proposed the "Sundays excepted" clause. We do not know why the delegates representing New Hampshire and Massachusetts objected to the amendment. Nor, for that matter, do we know who proposed the original seven day limit or why seven days was first chosen. All we know is that the "Sundays excepted" clause was passed along with language that gave the President three more working days to veto legislation. As we suggest below, the intent of the language was apparently to increase the power of the President in relation to Congress. Nothing suggests that Sunday was excepted for religious or spiritual reasons. If delegates to the Convention had justified the clause on religious grounds their comments most likely would have ended up in the record; after all, such reasoning would have been unique to a Convention that otherwise took great pains to eliminate all evidence of religion from the Constitution.

Does the clause "recognize" a Sabbath or legislate a day of rest?

Contrary to the argument of some accommodationists, the "Sundays excepted" clause is inexplicable as an attempt to recognize a Sabbath or establish a day of rest. Most states had Sunday laws at the time of the Constitution, and these laws were quite clear about (1) equating Sunday with the Sabbath, and (2) prohibiting non-essential activities on Sunday. The "Sundays excepted" clause does neither of these things. The text of the clause excepts "Sunday," not the "Sabbath;" it does not reference the Sabbath in any way or take any position on what day the Sabbath should be kept. Similarly, 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 they become law. It does not prohibit him from vetoing legislation or performing any other duty of his office on Sunday. The clause is completely unlike the Sabbath laws in the states; it falls utterly short of establishing a Sabbath.

The framers were intimately familiar with state practices regarding Sundays; if they wanted to pay homage to the Sabbath they would have copied state Sunday law on the federal level, made provisions for shutting down portions of the federal government on Sundays, or explained the "Sundays excepted" clause in religious terms. The Convention did none of these things. Instead, the founders chose language that would distance the Constitution from both the practices of the states and the constitutions of those European countries with church/state unions. This approach would be expected if the founders wanted to ensure that the Constitution would not be read as an endorsement of any one religion or religion in particular.

Purpose of the clause.

The plain language of the phrase "Sundays excepted" lends itself to simple and plausible explanation for its inclusion in the Presidential veto power clause: it allowed the President to make full use of the ten days he had to veto Congressional legislation. Ten days, with Sundays excepted, gave the President two work weeks within which to sign or veto a Bill. If the ten day count began on Thursday or Friday, the President would have 12 days to veto legislation (with two Sundays excepted). If the count began on any other day, the President would have 11 days (with one Sunday excepted).

The advantage of having two weeks within which to exercise the veto power is 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.

Many states, for example, 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 the earlier draft of Article I, Section 7 which allowed for only 7 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 particularly 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.

This 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.

An alternative explanation?

An alternative explanation of the "Sundays excepted" clause is that it served to ensure that a strict Sunday-keeping President would not be forced to veto legislation on the Christian Sabbath in violation of his or her religious beliefs. This argument seems reasonable at first glance, but a closer look suggests it is implausible, for at least two reasons:

First, the argument seems to violate the predominate accommodationist understanding of the Constitution. Most accommodationists argue that the framers intended to bar only preferential aid to religion, i.e., aid that singled out a single religion or religions for special treatment. But the "Sundays excepted" clause protects only Sunday keepers; it would not protect, for example, an Orthodox Jew, a Saturday-keeping Christian, or a Friday-keeping Muslim. Hence, non-preferentialists who want the "Sundays excepted" clause to count as a public endorsement of the Sabbath cannot make that argument without undercutting the historical probability of their own position.

Critically, we note that the framers were very much aware that the Constitution did not bar non-Christians from becoming President (see, eg., Isaac Kramnick and R. Laurence Moore, The Godless Constitution, ch. 2, for a review of relevant evidence). Hence, non-preferentialists can't get around this argument by arguing that the framers would have expanded the clause to include Saturdays or Fridays if they thought that it was possible that a Saturday or Friday keeper would be elected President:

Second, there is no evidence that the framers has any particular concern for protecting Presidents from doing work on the Sabbath. The "Sundays excepted" clause applies only to vetoes. It does not protect the President from having to make Commander-in-Chief decisions, signing reprieves, pardons, or treaties, appointing ambassadors and other public officials, or convening Congress on a Sunday. Commander-in-Chief decisions, in particular, are likely to impinge on the Sabbath; it is paradoxical that the framers would overlook such an obvious problem area for strict Sunday-keepers while at the same time building in Sabbath protection for vetoing legislation.

In summary, the "Sundays excepted" clause provides little support for the argument that the Constitution embodies or legislates Christianity. The clause does not legislate or recognize a Sabbath and, in fact, seems to protect the President from the operation of Sunday laws in the several states. Finally, the accommodationists interpretation of the clause seems to work against the majority accommodationist position (non- preferentialism), and doesn't seem to account for why the clause applies only to the President's veto power.
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