Judicial Religious Legislation Exposed

Decisions of State Supreme Courts

Now the decisions of the supreme courts of those original States sustain those original Sunday laws on their original religious grounds; and then to evade the constitutional prohibition of religious legislation, in defiance of the fundamental maxim that “the intent of the lawmaker is the law,” these courts commit the act of judicial religious legislation by declaring that those religious laws are “civil regulations.” JRLE 2.2

This manifest straddling of the issue it is possible to make some allowance for in those cases, from the fact that all those original States except Rhode Island had established religions; and it is too much to expect that those courts, even at the enormous expense of judicial religious legislation, could make a clean break with tradition. But in the cases of the later States it is impossible to make any such allowance. All of these were Territories, and became States, absolutely free from any governmental recognition of things religious; and in the clear light of American and constitutional religious liberty gained and established under the splendid leadership of Jefferson, Madison, and Washington. JRLE 2.3

Thus the later States arose, having no establishments nor any recognition of religion, and with their constitutions distinctly prohibiting any such thing. Yet by sheer force of traditionalism, the Sunday laws of the States that had established religions have been incorporated in the legislation of all the later States, whose true traditions and whose original constitutions forbade any establishment of religion or recognition of things religious. JRLE 2.4

Here, then, is the genealogy of all the Sunday laws of all the American States. The Sunday laws of the later States are only the repetition of the Sunday laws of the original States, which were only the identical Sunday laws of the colonies, which were the Sunday laws of England, which were the Sunday laws of papal Rome. And from their original in Rome to their final in these latest States, in every generation they have been nothing else than exclusively religious both in origin and intent. JRLE 2.5

And yet, in the face of the principle and provision of constitutions prohibiting such laws, and in defiance of the fundamental maxim of law itself, the supreme courts in all these later States have made these Sunday laws to be “constitutional” by giving to them a foreign, false, and unthought-of intent and meaning of said intent and meaning being ... “sanitary,” and even pathological, instead of what by every item of evidence in the case they are—exclusively religious, originally, genealogically, theologically, and logically. JRLE 2.6

In perfect illustration of this is the statement of the Supreme Court of Ohio to the effect that the Sunday law “could not stand for a moment” in that State in the presence of the principle of separation of church and state and the constitutional prohibition “if its sole foundation” were religious. JRLE 2.7

By the unanimous evidence of history, law, and fact, “the sole foundation” of Sunday laws has always been religious. The very statute which the Ohio court was in this case construing stood in the code under the title of “Offenses Against Religion and Morality.” Never in the world was there enacted a Sunday law with any other than religious intent. And “the intent of the lawmaker is the law.” A law “can have no meaning beyond the intent of those who made it.” “The law must be construed according to the intention of the lawmaker.” Therefore, in truth, in fact, and in law, the Sunday law of Ohio is unconstitutional; and this, according to the very word of the court, that the Sunday law “could not stand for a moment” in the presence of the constitution, “if the sole ground” were exactly what it is—religious. JRLE 2.8

But in spite of truth, fact, the law, and the maxims of law, the court proceeded to legislate the Sunday law into “constitutionality” by the declaration that it is “a mere municipal or police regulation,” and then immediately proceeded to recognize religion as its sole foundation by the statement that, “in accordance with the feelings of a majority of the people, the Christian Sabbath was very properly selected.” And then, having thus fixed it as undoubtedly religious, the court sagely observed that “the legislative power in Ohio has never extended to the enforcement of religious duties, merely because they are religious.” Oh, no; of course not! That would be unconstitutional. But just call these religious duties “civil,” and enforce them as “civil,” and that will be entirely constitutional! JRLE 2.9