The Washington herald., 1912-01-29

And this falsely "civir' cover for the
truly religious Sunday laws-this judicial
religious legislation-the national Su-
preme Court has confirmed for all the
States. The story OF It is curious as well
as valuable.
The constitution OF California guaran-
tees the free exercise OF religious profess
ton or preference" A law was enacted
there that mo person shall, on the Chris
tian Sabbath, or Sunday, keep open any
Statute Teached tSe supreme sg upSer coart 'n Of
that State. In the finest and best rea-
soned decision ever rendered on the sub
constitutional; Justice stephen J. Field
In his dissenting opinion Justice Field
first gave civil" physical" and gen
eral health" cover TO the religious stat
ute designating the Christian Sabbath.
or Sunday" and then confirmed and sus-
tained the religious basis Of the law by
declaring that christianity" being the
prevailing faith OF our people" and "the
basis of our civilization" that its spirit
should infuse itself into our laws, is
natural"
The constitutional prohibition Of any
discrimination or preference" in 'reiig-
ious profession or worship he circum-
vented thus: In what manner it con-
ficts with the fourth section ] am un-
able to perceive. 1t makes no dis
elimination or preference between the
Hebrew and Gentle, the Mussulman and
pagan, the Christian and inhdel:
OF course, We must give to the judge
full credit for telling the truth where
he said that he was unable TO perceive
that a statute plainly designating the
Christian Sabbath" was any discrimina-
ton or preference over Jew, Mussulman,
pagan, or infidel But when a man in his
position is confessedly unable 70 per
gives cause for veEy serious question as
to whether and how he could be able
really 70 C, GsTeeiye AL mat ne snd
hygienic basis Of the religious Sunday
law
as that was unable to perceive" so open
and palpable thing, as that the positive
designation OF the Christian Sabbath"
in the law is a discrimination and prefer
ence in favor of the Christian religion,
then how can any of us be fairly con-
sidered Culpahle in being equally unable
to perceive that Justice FIELDS civil.
OF Sunday laws is anything else than
inept. foreign, and false? And Is It the
American principle that the defective per:
ception Of the judge shall be the 1inal
The next year after that decision OF
the California court. and Justice Field g
dissenting opinion, Justice Field himself
court. In 1851 another Sunday law
case came before that court. In
the decision upon this case. the
planted with Justice Fields dissenting
opinion in that case, which stood as the
law OF the subject in that State until
the people OF California, as the supreme
in their own constitution, by the decision
of popular vote, Overwhelmingly swept
out Of existence all Sunday laws in the
State.
Chief Justice Field. Of the California
court, became Associate Justice Field. OF
the national Supreme Court And when
f~gzo haf N1na W1af 7aN GrHTaF anna.
Court as to the cOnstitutionality of Sun
day laws in the States, the court sus-
tanned those Sunday laws. and cited jus
ground Of the decision. And so. by ma
tional decision. the religious Sunday laws,
upon the foreign and false basis furnished
have been fastened upon all the States.
And this is q plain indication of just
what the national Supreme Court will
government whenever there shall come
to that court an opportunity. This is
further indicated by the fact that in
nation" the national Supreme Court men
toned the laws respecting the observ-
ance OF the Sabbath" as one OF the
And ali Of this is strictly pertinent and
up TO date. by the fact that the Sunday
Rest Committee of the District of Co
lumbia, through its attorney. has issued
to Congress printed brief on THE
Legal and Constitutional Aspects" of
Sunday legislation; pleading that it be
regarded as CIVIL yet presenting no sim
gle item OF any other ground than re-
igious.
In the District of Columbia.
And just let Congress enact a Sunday
law for the District of Columbia. and the
aforementioned and dangerous "oppor-
tUnity'' will come TO the national Supreme
Court. Then let the court still hold the
ground taken in its decisions here cited
and there you will have the same old
religious Sunday laws made Of national
force and authority here. In that there
will be restored and established here the
old and original union OF religion and the
state. And in that there will be put into
the hands Of the church combine here the
key TO the union of church and state in
this nation. And that church combine
will promptly see to it that this key shall
all the doors of the religious despotisnls
Of the old order OF things. And the creak-
ing Of the old and rusty hinges OF these
opening doors will sound the knell OF
nation and for the world.
And this will have been all brought
about solely by judicial religious legisla-
ton: that is, by the courts, State and
national, having made exclusively relig-
ious laws constitutional against the posi-
tive inhibitions Of the constitutions
State and national. and against the fun
damental maxims Of law itself. by giving
TO these laws a meaning false in fact, and
foreign both TO the nature of those laws
snd TO the intent OF the makers OF the
laws.
The principle that must ever, in Justice.
guide in the construction of statutes as
wen as constitutions, Is authoritatively
stated as follows:
"a court which should allow a chanee
of public sentiment to influence Il in Civ
ing to written constitution a eonstruc- |
tion not warranted by the intention OF its |
founders, would be justly chargeabIa with |
reckless disregard of official oath and
public dtuy." = Cooley, Unconstitutional
page g.
The principle applies with equal force
to the construction of a statute as TO the
construction OF a constitution And
whether the change OF sentiment which |
a court should allow thus to influence IL |
be public and general or only the private ,
court Itself, the principle Is the same and 1
such court IS equally "charGeable with ]
reckless disregard of official oath and |
public duty" Yet this is precisely what |
has been done by the courts when. BY |
setting up an utterly new and foreign
a construction not in any sense war
ranteG by the intention OF fits founders or |
its trainers anywhere In human history |
or experience.
Not Recall, hut INSTRUCTION..
Now, upon all this. some may be |
ready to say, Recall such judges" But
do not say recall the judges. 1 say, !
Instruct the courts.
You recall the Judges, and you will |
dll their places only with other iudEes
rs ill-informed on the principles and as |
precedent-bound as those whom you re- |
rall. But instruct the courts and YOU |
can have an Intelligent construction Of |
the law and the constitution; and so an |
Intelligent expression OF the will of the |