Never on Sunday?

__"The Sunday Mails" by David P. Currie, in The Green Bag (Summer 1999), P.O. Box 14222, Cleveland, Ohio 44114.__

Congress is being asked to enforce "the law of God," thundered an indignant Senator Richard M. Johnson (D.-Ky.). The measure before Congress is nothing more than "the entering wedge of a scheme to make this Government a religious instead of a social and political institution." Not an unfamiliar argument--except that Senator Johnson was speaking in 1829. At issue was the seemingly trivial matter of Sunday mail delivery and whether to discontinue it. Yet in this passionate debate nearly 200 years ago, writes Currie, a professor of law at the University of Chicago, one can see "the whole modern understanding of the establishment clause" of the Constitution, in which it is decreed that "Congress shall make no laws respecting an establishment of religion, or prohibiting the free exercise thereof." The Founders themselves had seemed uncertain of the clause’s meaning. Did it ban only the establishment of a national church, or did it go further? President Thomas Jefferson (1801–09) consistently refused congressional pleas to declare official days of prayer. President James Madison (1809–17) did issue such declarations but privately opposed them after he left office.

Sunday postal delivery was largely taken for granted until 1814, when Representative Samuel Farrow of South Carolina tried to convince the House of Representatives to stop the "unnecessary, inadmissible and wicked" practice. Postmaster General Return Meigs replied that the post office must operate daily, especially in wartime. The House voted nearly two to one against Farrow.

But it was in the 1829 debate, Currie says, that the full outline of the modern argument can be seen. Although a committee chaired by Johnson agreed that one day in seven was acceptable for a "respite from the ordinary vocations of life," it argued that "the proper object of government is to protect all persons in the employment of their religious as well as civil rights; and not to determine for any whether they shall esteem one day above another, or esteem all days alike holy." The Constitution "wisely withheld from our Government the power of defining the divine law," in order to minimize religious conflict, the committee continued. "It is a right reserved to each citizen." At the same time, Johnson’s committee recognized a modern version of the "free exercise" provision, noting that post office employees were not required to work on either the Jewish or the Christian Sabbath.

Johnson and his allies prevailed. It was not until 1912 that regular Sunday mail delivery ceased. But the events of 1829, Currie concludes, show that "the notion that the establishment clause does more than prevent erection of a national church is no modern heresy."