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ary laws, and are constitutionally objectionable on that ground, if the measures are not confined to the prohibition of the sale of liquors. This is the usual limitation upon the scope of the probibition laws. But it is said that in the States of Wisconsin and Nevada laws have been enacted by the Legislature, prohibiting the act of “ treating to intoxicating drinks, making it a misdemeanor, and punishable by fine or imprisonment. There is probably very little doubt that a large proportion of the intemperance among the youth of this country may be traced to this peculiarly American custom or habit of “treating.” But inasmuch as the persons, who are directly injured — and this is the only consequential injury which can be made the subject of legislation - are all willing participants, except in the very extreme cases of beastly intoxication, when one or more of the parties “ treated ” cannot be considered as rational beings volenti non fit injuria — these regulations are open to the constitutional objection of a deprivation or restraint of liberty, in a case in which no right has been invaded. The manifest inability to secure, even in the slightest degree, an enforcement of these curious experiments in legislation has been their most effective antidote. But while, as a general proposition, we may freely use what ever food or clothing taste or caprice may suggest, without the exercise of any governmental restraint, there are some exceptions to the rule, which will probably be admitted without question. Certainly no one would seriously doubt the constitutionality of the laws, to be found on the statute book of every State, which provide for the punishment of an indecent exposure of the person in the public thoroughfares. Every one can be required to appear in public in decent attire. It is not definitely settled what is meant by indecent attire, but probably the courts would experience no difficulty in reaching the conclusion that any attire is indecent, which left exposed parts of the human body which according to the common custom of the country are invariably covered. It is questionable that the courts can go farther in the requirement of decent attire, as, for example, to prohibit appearance in the streets in what are usually worn as undergarments, provided that the body is properly covered to prevent exposure.
Another phase of police power, in this connection, is the prohibition of the appearance in public of men in women's garb, and vice versa. The use of such dress could serve no useful purpose, and tends to public immorality and the perpetration of frauds. Its prohibition is, therefore, probably constitutional. But it does not follow that a law, which prohibited the use by men of a specific article of women's dress, or to women the use of particular piece of men's clothing, would be constitutional. The prohibition must be confined to those cases, in which immorality or the practice of deception is facilitated, viz., where one sex appears altogether in the usual attire of the other sex.
$70. Church and State Historical synopsis. Religious liberty, in all its completeness, is a plant of American growth. In no other country, and in no preceding age, was there anything more than religious toleration, and even toleration was not a common experience. Everywhere, the State was made the instrument for the propagation of the doctrines of some one religious sect, and all others were either directly prohibited, or so greatly discriminated against in the bestowal of State patronage, as to amount, in effect, to an actual prohibition. On the other hand, the State would secure the support of the church in the enforcement of its mandates. Before the American era, the gradual development of the human soul, under the workings of the forces of civilization, had long since done away with physical torture. Heretics were not burned at the stake, or put to the rack, but the same cruel intolerance exacted the creation of social and political distinctions, which were equally effective in oppressing those who differed in their religious faith with the majority. Protestant England and Germany oppressed the Catholics, and Catholic France and Italy oppressed the Protestants, while the infidel received mercy and toleration at the hands of neither. Most of the immigrants to the American colonies were refugees from religious oppression, driven to the wilds of America, in order to worship the God of the Universe according to the dictates of their conscience. The Puritans of New England, the Quakers of Pennsylvania, the English Catholics of Maryland, and the Huguenots of the Carolinas, sought on this continent that religious liberty which was not to be found in Europe. I should not say “ religious liberty,” for that is not what they sought. They desired only to be freed from the restraint of an intolerant and opposing majority. They desired only to settle in a country where the adherents of their peculiar creed could control the affairs of State. Notwithstanding their sad experience in the old world, when they settled in America, they became as intolerant of dissenters from the faith of the majority, as their enemies had been towards them. Church and State were not yet separate. Each colony was dominated by some sect, and the others fared badly. The performance of religious duties was enforced by the institution of statutory penalties. The clergyman, particularly of New England, was not only the shepherd of the soul, but he was likewise, in some sense, a magistrate. “The heedless one who absented himself from the preaching on a Sabbath was hunted up by the tithing man, was admonished severely, and, if he still persisted in his evil ways, was fined, exposed in the stocks or imprisoned in the cage. To sit patiently on the rough board seats, while the preacher turned the hour-glass for the third time, and with his voice husky from shouting, and the sweat pouring in streams down his face, went on for an hour more, was a delectable privilege. In such a community the authority of the reverend man was almost supreme. To speak disrespectfully concerning him, to jeer
at his sermons, or to laugh at his odd ways, was sure to bring down on the offender a heavy fine.” 1 The religious liberty of the colonial period meant nothing more than freedom from religious restraint for the majority, while the minority suffered as much persecution as the immigrants had themselves suffered in Europe, a striking illustration of the accuracy of the doctrine that there are no worse oppressors than the oppressed when they have in turn become the ruling class. It is no exaggerated view to take of the probabilities, that the grand establishment of religious liberty of to-day would not have been attained, at least in the present age, if the rapid increase in the number of religious sects, each one of which was predominant in one or more of the colonies, had not militated against the successful union of the colonies into one common country. “ In some of the States, Episcopalians constituted the predominant sect; in others, Presbyterians; in others, Congregationalists; in others, Quakers, and in others, again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power.” ? Congress was therefore denied by the first amendment to the Constitution of the United States the power to make any law respecting an establishment of religion or prohibiting the free exercise thereof. “ Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and Protestant, the Calvinist and the Armenian, the Jew and the infidel, may sit down at
1 McMaster's Hist. of People of U. S., vol. I., p. 31. · Story on the Constitution, $ 1879.
the common table of the national councils, without
any inquisition into their faith or mode of worship.” 1
Proceeding from this limitation upon the power of the national government to regulate religion, there was ultimately incorporated into the constitutions of almost all of the States a prohibition of all State interference in matters of religion, thus laying the foundation for that development of a complete and universal religious liberty, a liberty enjoyed alike by all, whatever may be their faith or creed. Thus and then, for the first time in the history of the world, was there a complete divorce of church and State. But even with the enactment of the constitutional provisions, religious liberty was not assured to all. Legal discriminations, on account of religious opinions, exist in some of the States to the present day, and public opinion in most American communities is still in a high degree intolerant. The complete abrogation of all State interference in matters of religion is of slow growth, and can only be attained with the growth of public opinion.
§ 71. Police regulation of religion - Constitutional restrictions. — If there were no provisions in the American
constitutions specially applicable to the matter of police regulation of religion, the considerations which would deny to the State the control and prevention of vice would also constitute insuperable objections to State interference in matters of religion. But the rivalry and contention of the religious sects not only demanded constitutional prohibition of the interference of the national government, but gave rise to the incorporation of like prohibitions in the various State constitutions. The exact phraseology varies with each constitution, but the practical effect is believed in the main to be the same in all of them. These provisions not only prohibit all church establishments, but also guarantee
i Story on Constitution, $ 1879. 2 See post, $ 75.