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of the land. Does any man in his senses suppose that the amendment in question can be carried through this process? Nothing short of a largely predominant public sentiment could secure the result. No such sentiment now exists, and there is not the remotest probability of creating it by any amount of discussion. The tendency of discussion would be in the opposite direction. A political party organized on the basis of such an amendment would not live long enough to be entitled to a name, and any existing party adopting it as an article of its political creed would be crushed by its weight. The advocates of the amendment may as well save their time and money and apply both to the attainment of more practical objects.
THE GUARANTY OF RELIGIOUS LIBERTY.
The Constitution of the United States declares that “no religious test shall ever be required as a qualification to any office or public trust under the United States,” and that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." These provisions guarantee religious liberty against encroachments by the General Government; yet neither of them imposes any limitation upon the powers of the States.
So, also, the Constitution declares that “the United States shall guarantee to each State in this Union a republican form of government,” and that “the citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States.” These clauses have no relation to the question of religious liberty as it may be affected by State constitutions and State laws. A State might be republican in the form of its government and yet practice religious oppression upon a portion of its citizens. The rule adopted by the Supreme Court of the United States in interpreting the provision that relates to "the privileges and immunities of citizens in the several States” makes it inapplicable to the religious liberty or any other right of the citizen as determined by the State of which he is a resident. The Court, in the cases of Paul vs. Virginia (8 Wallace, p. 168), and of the New Orleans Slaughter-house (16 Wallace, p. 36), laid down the principle that this provision does not “ control the power of the State governments over the rights of its own citizens.”
There is nothing in the last three amendments to the Constitution that reaches the question of religion, and nothing anywhere else in this instrument that places the States under the slightest restraint with reference to this subject; and, hence, it is true, as remarked by Justice Story, in his Commentaries on the Constitution (section 1879), that “the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their sense of justice and the State constitutions."
The States, moreover, by the express language of the Tenth Amendment, retain all “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States.” These are called “ reserved State powers; and among them is that of dealing with religion and the religious rights and liberties of the people in such manner as each State shall think most expedient. State power in this respect is plenary and complete, subject to no limitation by the National Constitution.
It is well known, as a matter of history, that long after the Constitution went into operation the power of taxation for the support of religion in the Protestant form was actually exercised in some of the States. That power still exists, and might be exercised by any State to any extent, and in favor of Christianity or any other religious system. New Hampshire, Pennsylvania, North Carolina, South Carolina, Mississippi and Tennessee have today religious tests in their respective constitutions with reference to the qualifications for holding office. Maryland has such a test in her constitution in respect to the qualifications of witnesses and jurors. Delaware, Kentucky, Maryland and Tennessee exclude clergymen from civil office, on account of their ecclesiastical functions. These examples, though exceptional to the general character of the State constitutions, are a practical commentary upon the statement of Justice Story that “the whole power over the subject of religion is left exclusively” with the respective States. They may, if they choose, establish religion, support it by taxation, and enforce it by test-acts or by pains and penalties.
The States cannot coin money, or emit bills of credit, or make anything but gold and silver coin a tender in payment of debts, or pass a bill of attainder or an ex-post facto law or any law impairing the obligation of contracts, or grant any title of nobility, or exercise any of the powers exclusively delegated to the United States. These and other abridgments of State power were made to secure the harmony and good of the whole as one people. If the sacred rights of religious liberty were included, and the States dispossessed of all power to interfere with these rights, this would be simply according to the analogy of the Constitution. These rights are not inferior to those which arise from contracts, or those which may be affected by ex-post facto laws, or those which relate to property. Religious liberty is very intimately allied with free government. Our general theory is that the citizen, subject to the limitation of decency and good order, should be absolutely free as to his religion, and that on this account no legal preferences should be granted to him and no discriminations made against him. This doctrine surely needs no defense in this country. Why, then, should it not be incorporated into the fundamental law of the land in such a form as to be restrictive not only upon the
powers of the General Government, but equally so upon those of all the States? Why should not so vital an interest as that of religious liberty be committed to the custody of the whole people in their collective character, and be thus guarded in the best possible manner against the “accidents of ignorance,” the passions of zealots, and, indeed, all causes of peril? It seems to us that the proper place for the assertion and guaranty of the principle is in our national Magna Charta. The principle is quite as important as the obligation of contracts or the protection of the citizen against ex-post facto laws.
We see no reason why Congress should by the Constitution be placed under restraint as to religious tests, as to the establishment of religion, and as to the free exercise thereof, that is not equally good to show that the States should in the same constitution be placed under a similar restraint. If the whole people, as represented in Congress, cannot be safely trusted on this question without a Constitutional restraint, can the people in parts and as organized into separate communities be trusted with any more safety? The whole body politic composing the nation with its diversity of sentiments, its broader comprehension of interests, and more extended view of what is best for the whole-is less likely to err than any local sections of the whole.
If a religious test would be objectionable in the General Government, it is equally so in a State Government; and if on this subject the former cannot