Popular Law-making: A study of the origin, history, and present tendencies of law-making by statuteStimson, Frederic Jesup
History
Popular Law-making: A study of the origin, history, and present tendencies of law-making by statute
Stimson, Frederic Jesup
Legislation -- United States
The religious rights, although for the most part peculiar to the
American Constitution, adopted by us, indeed, as a result of the
history of the two or three centuries preceding in England, but hardly
in any particular a part of the British Constitution, were by the
reason of our very origin so strongly asserted and so highly valued
with us that no legislation has been found necessary on the subject.
Perhaps the sole important instance in which the question has come up
has been that of instruction in the public schools and the use of the
money raised by common taxation for special religious purposes. Very
generally the latter is forbidden in our State constitutions, the
Federal Constitution by the First Amendment merely protecting the
right from the action of Congress. Owing to decisions of the
Supreme Court, in the South it has become possible to divide school
appropriations between schools for whites and blacks, and it is
presumable that the same thing might be done as, for instance, between
Roman Catholics and others, and something of the sort has, I believe,
been done with the appropriations for the education of Indians.
The few statutes we find upon this matter tend to still further extend
and liberalize religious rights. Almost universally now a man is not
forbidden from testifying or being a witness by reason of his belief
or disbelief, even when he is an atheist. The latter law is not,
however, quite universal. He must, in some States, believe at least in
the existence of God, or of a future state of reward or punishment.
Mormons, at one time, claimed the right to practise polygamy as a
part of their religion guaranteed to them by the Constitution; the
contention did not prevail; on the contrary the Mormon States were
made to submit to an enabling act under which they bound themselves to
adopt State constitutions providing for all time against polygamous
practices. Such a treaty is not, of course, binding upon a sovereign
State unless Mormonism be deemed inconsistent with a republican form
of government; so that Utah, for instance, has probably the right to
re-establish Mormonism to-morrow so far as the Federal Constitution
is concerned. Whether it would be permitted by a strenuous president
having public sentiment at his back may indeed be questioned. In
like manner, Christian Science practitioners have invoked the
constitutional right of religious belief against the common law
requiring that those offering themselves to practise medicine should
be reasonably skilled in their trade. Legislation permitting Christian
Scientists to practise freely has been attempted in nearly all the
States, but has not, so far as I am informed, succeeded in any,
although a good many States have adopted statutes extending the right
to osteopaths. Under the common law of England, re-established in
Massachusetts by a famous decision[1] twenty years ago, a person
holding himself out as a surgeon or medical practitioner, who is
Public-domain text, read in full here on John Shaqi.
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