ERRONEOUS JUDICIAL REASONING.
By W. N. Glenn
In the now famous decision of the United States Supreme Court declaring that “this is a Christian nation,” there occurs this curious piece of logic:— No purpose of action against religion can be imputed to any legislation, state or national, because this is a religious people. As a matter of fact, the reason why “no purpose of action against religion can be imputed to any legislation” is because, as a political organization, this is not a religious people. If it were a religious people, we might naturally expect purposes of action against all religions other than that upheld by the people in their governmental capacity. Even were every citizen, at the time of the adoption of the Constitution, a religious person, it is clear that that fact was not designed to enter into the purposes of the national compact. The forming of a governmental arrangement was a purely secular movement, for purely secular purposes. It matters not what was the purpose of the expedition that discovered America; it matters not what was the purpose of European governments in establishing colonies; it matters not what was the character of the governments of those colonies; it matters not even what was the character of the government under the Articles of Confederation prior to the adoption of the Constitution in 1889; this nation, this people in a national capacity, takes character from the Constitution. The Constitution clearly defines the functions of the three branches of the government—the legislative, the executive, and the judicial departments. Yet there is not one word about religious duty or purpose throughout the document. Not only so, but at the first session of Congress under this Constitution, an amendment was proposed especially emphasizing the non-religious character of the fundamental law. This amendment was sustained by the states, and provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” etc. The effect of this Supreme Court “Christian nation” opinion, if sustained by the people, is to establish the Christian religion, a consummation forbidden to Congress. Where is the force of a constitutional provision forbidding an establishment, by a law of Congress, which the Supreme Court may effect by a mere dictum? The result of such logic is law enacted by the judicial department of the government, a department whose constitutional power is limited to “cases in law and equity.” Of course this dictum has of right no legal force. The case at bar was decided, and properly decided, on legitimate grounds, and this dictum, with all the matter upon which it was based, was entirely irrelevant and superfluous. But the National Reform forces, and other agitators who would fain have it enforced as law, are doing all in their power to make the people believe that it is law, and therefore gives constitutional sanction to all manner of religious legislation. And it will, no doubt, have force in shaping legislative and judicial decisions. It will be deemed a precedent in lower courts indicating the probable decision of the Supreme Court in cases involving religious requirement, such as the observance of Sunday. It will be deemed a precedent by legislators in determining the probable status of proposed religious legislation in the event of its coming before that tribunal. The demands of religious “reform” bodies on the strength of this dictum will be legion. Already such religious forces as look upon the civil government as the servant of the church are quite dictatorial in their demands upon all grades of legislative bodies, from the town council to the national Congress; and their slogan is, “This is a Christian nation, therefore we demand” thus and so. Whoever dissents from these demands is met with the charge of setting himself above the Supreme Court, “the highest authority in the land.” But the Supreme Court is not the highest authority in the land. The highest authority is in the people, who have indicated the character of the government in the language of the Constitution, from which the Supreme Court derives its authority. The people have said (Treaty with Tripoli, 1797) that “the Government of the United States of America is not, in any sense, founded on the Christian religion, as it has in itself no character of enmity against the laws, religion, or tranquillity of Musselmans,” etc. And Article VI of the Constitution says: “This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land.” In the light of these facts, it is clear that the Supreme Court has given an erroneous reason why “no purpose of action against religion can be imputed to any legislation, state or national.” The reason is not “because this is a religious people.” It is because, in the language of James Madison, “There is not a shadow of right in the general government to intermeddle with religion. Its least interference with it would be a most flagrant usurpation.” It is time that the people should know that the authority of a Supreme Court decision is binding only to the extent of the case at bar and its legitimate connections. Decisions have influence as precedents in cases involving like principles, but they do not decide other cases, only as lower courts or the Supreme Court itself make them a basis of decision. It is possible for a court to reverse its own decision in subsequent cases. Such has been the case. Hence Supreme Court decisions (aside from the cases under consideration), especially mere dicta, can not properly be deemed law, although they8often have the effect of law, because most of the common people, many lawyers, and legislators generally, treat them as law. If the people by unanimous sentiment choose to ignore any principle involved in a decision, that is, beyond the case immediately affected, there is no power to enforce it. Supreme Courts are not infallible, nor is their authority unlimited. The dictum of a court has no binding authority at all. It is simply “a judicial opinion expressed by judges on points that do not necessarily arise in the case, and are not involved in it.”—Webster. Such was the opinion of the court that “this is a Christian nation.” It was a mere dictum, a far-fetched dictum, most illogically dragged into a case involving the right of a New York church to contract with and import a pastor from England. And it is a remarkable fact that the court devoted almost as much space to the support of this extraneous opinion as it did to the actual decision of the case. And this superfluous labor produced a document and aroused a sentiment that bids fair to become the lever that will overthrow both civil and religious liberty in the United States.