It has been shown in chapter 5 how that, upon the victory of religious right in Virginia in 1787, and the nationalizing of those principles by the example and provisions of the national Constitution made in 1787-1789, "In every other American State oppressive statutes concerning religion fell into disuse." And that the statute of Virginia then established had since been incorporated-always in its principles and often in its very words-in every State constitution in the Union from that day to this.
This was not accomplished in a day, however, in the others of the original thirteen States. As also formerly stated, and the other States except Rhode Island had establishing religious in some form. This was so when the national Constitution was adopted. And being so, each State retaining control of its own peculiar institutions, the national Constitution was not made to prohibit State recognitions of religion, but only that the "Congress shall make no law respecting and establishment religion, or prohibiting the free exercise thereof." It was hoped indeed that the moral effect of the example of the national Constitution would lead to the extinction of the thing in all the States. But the difficulties attending the creation of a national power at all, were so great that it was essential to attend to this one paramount object, and not try to accomplish too much at once and directly, lest nothing at all be done. Abraham Lincoln's statement of the case as to slavery-the civil despotism-is so precisely the statement of the case as to established religion-religious despotism-that it could not be better defined; therefore we quote:
"When our government was established we had the institution of slavery among us. We were in a certain sense compelled to tolerate its existence. It was a sort of necessity. We had gone through our struggle and secured our own independence. The framers of the Constitution found the institution of slavery amongst their other institutions at the time. They found that by an effort to eradicate it they might lose much of what they had already gained. They were obliged to bow to the necessity.... They did what they could, and yielded to necessity for the rest"-Springfield, III., Speech, July 17 1858, Political Speeches and Debates, p. 160.
Read "established religions" in place of "slavery" in this passage, and the case is perfectly stated as to that question also.
Thus the institution of slavery continued until, by a Supreme Court decision perverting the Constitution, an attempt was made to nationalize it, when it was abolished even in the States by the thirteenth amendment to the national Constitution, which runs thus:-
Article XIII
"Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime, whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
In order that this amendment might be effective in all its scope, it was essential that the basis of citizenship should be changed.
"If we were now to have a broader nationality as the result of our civil struggle, it was apparent to the mass of men, as well as to the publicist and statesman, that citizenship should be placed on unquestionable ground, on ground so plain that the humblest man who should inherit its protection would comprehend the extent and significance of his title."-Blaine, Twenty Years of Congress, Vol. II, p. 311.
Accordingly, the fourteenth amendment to the Constitution was adopted, the first section of which reads as follows:-
Article XIV
"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States, and of the State in which they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws."
Before this amendment was adopted there was, primarily, no such thing as citizenship of the United States. Citizenship of the United States came, except to aliens, only as a consequence of citizenship of a State. The reason of this peculiar fact was that the thirteen States were all here as sovereign independencies before the United States Government was formed; and the people, being citizens of these States to begin with, when these very persons formed the national government they became, by that very process, citizens of the United States. And as there was no provision in the Constitution touching the subject with respect to any but aliens, the situation still remained the same-citizens of a State first, and, as a consequence of that, citizens of the United States. As stated by an authority in the time when the matter stood thus, it is as follows:-
"Citizenship, as we understand it, may be acquired in either of two ways,-by birth or by adoption, called, when applied lo aliens, naturalization. After the Declaration of Independence, and before the adoption of the Constitution of the United States, the power of conferring citizenship by naturalization or otherwise, like all other sovereign powers, was in the several States. And as the power vested in Congress by that instrument applies to aliens only, and as all powers not delegated to Congress by the Constitution, nor prohibited to the States, are expressly reserved to the States respectively or to the people, the power of conferring citizenship on all persons not aliens, necessarily remains in the several States both as to persons born on their soil, and as to those born in other parts of the Union; and any person upon whom such rights are conferred becomes a citizen of the State conferring them. And every citizen of a State is, ipso facto, a citizen of the United States."-Law Reporter, June, 1857, p. 14.
As more fully stated by authority since it was changed, it is as follows:-
"Before the adoption of this amendment, citizenship of the United States was inferred from citizenship of some one of the States, for there was nothing in the Constitution defining or even implying national citizenship as distinct from its origination in, or derivation from, a State. It was declared in Article IV, section 2, of the Federal Constitution, that citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States; but nothing was better known than that this provision was a dead letter from its very origin. A colored man who was a citizen of a northern State was certain to be placed under the surveillance of the police if he ventured south of the Potomac or the Ohio, destined probably to be sold into slavery under State law, or permitted as a special favor to return at once to his home. A foreign-born citizen, with his certificate of naturalization in his possession, had, prior to the war, no guarantee or protection against any form of discrimination, or indignity, or even persecution, to which State law might subject him, as has been painfully demonstrated at least twice in our history."
At that time any State could have as thorough-going an establishment of religion as might be chosen, and persecute without limit, and yet there was no refuge under the national Constitution, because that document only said that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof." The Constitution did not say that no State should do it; and as the powers not delegated to the United States, nor prohibited by it to the States, are reserved to the States or to the people, it followed that each State might do all this without restraint, at its own will. The fourteenth amendment overturned this. Further we quote:-
"But this rank injustice and this hurtful inequality were removed by the fourteenth amendment. Its opening section settled all conflicts and contradictions on this question by a comprehensive declaration which defined national citizenship, and gave to it precedence of the citizenship of a State. 'All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States, and of the States wherein they reside.' These pregnant words distinctly reversed the origin and character of American citizenship. Instead of a man being a citizen of the United States because he was a citizen of one of the States, he was now made a citizen of any State in which he might choose to reside because he was antecedently a citizen of the United States."-Blaine Twenty years, Vol. II, pp. 312, 313.
Every such person, then, being by the supreme law a citizen of the United States first of all, and this citizenship holding precedence of every other, it follows that all privileges, immunities, and rights secured to him by the national Constitution are likewise his first of all and take precedence of all others. This is as certainly true as it would be if there were no other citizenship known to the Constitution.
Now absolute freedom from any sort of an establishment of religion is an immunity, and exemption from every kind of law prohibiting the free exercise of religion is the privilege of every citizen of the United States; for it is written, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." If there were no other citizenship known to the Constitution than citizenship of the United States, the only law-making power that could possibly affect the citizen would be Congress. The only government that could have anything to do with the citizen would be the United States Government, and Congress is forbidden to make any law respecting religion or that would interfere with the free exercise of religion. Therefore, absolute freedom from any such thing is a privilege and immunity of every citizen of the United States, by the Constitution.
And now the second sentence of section I of this fourteenth amendment declares that "no State shall make or enforce any law abridging the privileges or immunities of citizens of the United, States." That is to say, that no State shall make any law, or enforce any law already made, which abridges, which restricts, which lessens, the privilege or immunity of any citizen of the United States to be absolutely free in things religious. It practically declares that "no State shall make any law respecting an establishment of religion, or prohibiting the free exercise thereof."
"Whatever one may claim as of right under the Constitution and laws of the United States by virtue of his citizenship, is a privilege of a citizen of the United States. Whatever the Constitution and laws of the United States entitle him to exemption from, he may claim an exemption in respect to. And such a right or privilege is abridged whenever the State law interferes with any legitimate operation of federal authority which concerns his interest, whether it be an authority actively exerted, or resting only in the express or implied command or assurance of the Federal Constitution or law."-Cooley, Principles, p. 247; Quoted by Bryce, American Commonwealth, chapter 36, par. 22, note.
Accordingly, this provision of the fourteenth amendment annihilates the force of every Sunday law, or other religious law, or law abridging the free exercise of religion, in every State in the Union. This is as plain a consequence as ever came or could come from any provision of law. It prohibits the persecution of any Seventh-day Adventist, Seventh-day Baptist, Jew, Protestant, Catholic, or anybody else, by any State law which interferes with the free exercise of his religion. This is the effect of the provision as it is in its plain reading. This is certain. And it is no less certain that the intent of those who made it was that this should be its effect. James G. Blaine was one of the leading spirits in the framing of this amendment, and, after remarking of the first provision of this section, that it "establishes American citizenship upon a permanent foundation, gives to the humblest man in the republic ample protection against any abridgment of his privileges and immunities by State law," and that "the first section of the constitutional amendment, which includes these invaluable provisions, is in fact a new charter of liberty to the citizens of the United States," with the matter before quoted, he continues:
"The consequences that flowed from the radical change in the basis of citizenship were numerous and weighty. Nor were these consequences left subject to construction or speculation. They were incorporated in the same section of the amendment. The abuses which were formerly heaped on the citizens of one State by the legislative and judicial authority of another State were rendered thenceforth impossible. The language of the fourteenth amendment is authoritative and mandatory: 'No State shall make or enforce any law abridging the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.
"Under the force of these weighty inhibition, the citizen of foreign birth cannot be persecuted by discriminating statutes, nor can the citizen of dark complexion be deprived of a single privilege or immunity which belongs to the white man. Nor can the Catholic, or the Protestant, or the Jew, be placed under ban or subjected to any deprivation of personal or religious right.
"The provision is comprehensive and absolute, and sweeps away at once every form of oppression and every denial of justice. It abolishes caste and enlarges the scope of human freedom. It increases the power of the republic to do equal and exact justice to all its citizens, and curtails the power of the State to shelter the wrongdoer, or to authorize crime by a statute. To Congress is committed the authority to enforce every provision of the fourteenth amendment, and the humblest man who is denied the equal protection of the laws of the State can have his wrongs redressed before the supreme judiciary of the nation."-Twenty Years of Congress, Vol. II, pp. 313, 314.
Such is the statement, the pledge, and the security, of religious right in the States, according to the "weighty," "authoritative, and mandatory" provisions of the national Constitution.
It is true that each State constitution contains strong guaranties of the perfect freedom of religious right, yet the Legislatures have ignored them, and the State Supreme Courts have interpreted them away. It is true that the national Constitution guarantees exemption from interference on the part of the government or any State, with the religious right of citizens of the United States; yet the supreme judiciary of the nation has interpreted into that Constitution "the establishment of the Christian religion" as the "meaning" thereof; Congress in its Sunday legislation has put in the national law the very religious idea that has been set up by the States; and the executive has approved it. Thus, so far, the national power, instead of maintaining the high dignity which the people had given it forever to protect the privileges and immunities of citizenship of the United States from invasion by the States, has abandoned its high station, and has gone down and actually joined the States in the invasion. Nevertheless,
The Right of the People Still Abides
The Constitution as the people have made it, is still the voice and will of the people. It still guarantees privilege, immunity, and freedom, to citizens of the United States: only as the agencies appointed by the people to maintain these guaranties have failed to do it, the responsibility and the right now devolve upon the people themselves to see that it is done.
Slavery and established religions-twin despotisms-existed in the States at the time of the making of the nation. The makers of the nation, finding it impossible to do away with them without risking the loss of all, yielded to the necessity and left them standing as State institutions only. When by the Dred Scott decision and congressional legislation the attempt was made to nationalize one of these despotisms, the people arose in their majesty and reversed that decision and destroyed that despotism, and with it all other, even in the States. Now, however, the other despotism has reared its hateful head, and, by means of the "Christian nation" Supreme Court decision, and congressional legislation, this is sought to be nationalized. Will the people, yea, will not the people, rise once more in their majesty and reverse this decision and set the national power back again at the height and dignity where they placed it when they destroyed the other despotism?
This is the duty, this is the task, this is the rightof the people of the United States. True, now as before, the wealth, the popularity, and the power of the country-the power of State and Church, and of Church and State united-are all against us. But God and the right are for us. And with the immortal Lincoln we must say:-
"We have to fight this battle upon principle, and upon principle alone.... So I hope those with whom I am surrounded have principle enough to nerve themselves for the task, and leave nothing undone that can be fairly clone to bring about the right result."-Springfield, Ill., July 17, 1858, Political Speeches and Debates, p. 145.
Let us never rest until there is created such a public sentiment that every court will be ashamed to use the term "Christian nation." For "public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed. Consequently, he who moulds public sentiment, goes deeper than he who enacts statutes or pronounces decisions. He makes statutes and decisions possible or impossible to be executed."-Id., p. 191.
True, in the effort to create this public sentiment, we shall be unpopular; we shall be scoffed at; we shall be reviled; but in this we are right-absolutely and eternally right. Then let no one "be slandered from his duty by false accusations, nor frightened from it by menaces of dungeons. Let us have faith that right makes might; and in that faith let us to the end dare to do our duty as we understand it."-Id., p. 527.
Many times the people may refuse to listen, as at first, even in his own home town, they did to Abraham Lincoln against slavery. Once in 1855, in Springfield, Illinois, Lincoln was advertised to speak on the "Slavery Question." Mr. Herndon, his law partner, spread great posters through the town, employed a band to march the streets, and had the bells rung to have the people come. Not a soul came to hear-but Herndon himself and the janitor of the building. Yet Lincoln made the following speech:
"Gentlemen: This meeting is larger than I knew it would be, as I knew that Herndon and myself would come, but I did not know that anyone else would be here, and yet another has come-you, John Paine [the janitor].
"These are bad times, and seem out of joint. All seems dead, dead, dead; but the age is not yet dead. It liveth as sure as our Maker liveth. Under all this seeming want of life and motion, the world does move, nevertheless. Be hopeful. And now let us adjourn and appeal to the people."
So it is now said to every reader of this book: Let us appeal to the people. Yea, though they will not listen, still let us appeal to the people. It is the only right course. The people must do the work. Will the people awake, and arise, and assert, and maintain,
THE RIGHTS OF THE PEOPLE?