THE LAW OF FUNDAMENTAL RIGHTS
149. The people of the several States, and the people of the United
States, have delegated powers to the governments which they have
respectively created. The powers thus delegated are general, or
special. Doubtless the special are implied in the general, but in
order to secure precision, and thus to mark off, in practical fashion,
the boundaries of the grants, the delegation of a power, or the
reservation of a power is declared as clearly as possible in language
of adjudicated meaning, or capable of interpretation according to such
meaning.
In the American constitutions, both federal and State, many provisions
are administrative, that is, prescriptive of method, or procedure, as
the strictly parliamentary provisions on the legislative respecting
sessions, the journal, the quorum, adjournments, the method of passing
bills, and the like. In the article on the judiciary, in State
constitutions, provisions are found concerning appeals, writs, minor
court officials, sessions of courts, records, decisions, and the like,
all of which are of secondary importance as compared with the general
grant of judicial power.
In the executive article,—and notably in State constitutions, all
that does not strictly belong to the executive office,—that is,
to the distinctive functions of the Governor, is administrative.
In the Constitution of the United States there is little of this
administrative matter formally expressed, but much by implication,—for
the appointees of the President (excepting the federal judges) are
administrative officers, and the appointees of the President, of the
heads of departments, or of the courts of law,—constituting what is
known in law as “inferior officers”[422] comprehends quite all persons
in the employ of the federal government.
In the State constitutions the important administrative offices are
usually named, as of treasurer, auditor general, secretary of state,
superintendent of education, commissioner of labor, of insurance,
of agriculture, of railways, and the like. The duties of persons
elected to these offices are usually prescribed in general terms.
Their delegated powers are ascertainable by judicial procedure. A
little reflection will make clear that most of the mere business
of government, State or federal, is carried on by administrative
officials who number, in the aggregate, in the United States quite a
million. These persons possess slight, if any discretionary authority;
they are ministerial public servants, and in the exercise of authority
vested in them they are all amenable to judicial process.
150. That Congress, with delegated powers of legislation, and
exercising them as the representative and agent of the sovereign people
of the United States, has power to lay and collect taxes, to coin
money, to declare war, to regulate commerce, and to do other acts,
whether or not these powers were specifically conferred, can hardly
be denied. The exercise of such powers goes with the very existence
of government. An example is afforded by the decision of the Supreme
Court that the power of the United States to acquire territory and to
govern it is an exercise of the war power.[423] The Court here reasons
from the general to the particular: from the general grant of power to
declare war to the particular use of the power in governing an area of
territory acquired.
It might seem, then, that as the whole always includes the part, and
the general the particular,—the necessary and essential thing to do
in creating government is merely to create it; for example, that the
people of the United States should ordain and establish a Constitution
consisting of the Preamble, which states the purpose and authority of
the Constitution, and three general articles:
Article I. The legislative power is vested in Congress.
Article II. The executive power is vested in the President.
Article III. The judicial power is vested in a Court.
151. The Preamble and these three delegations of power comprise the
essentials of the Constitution, lacking one other:
Article IV. The powers not delegated are reserved to the States or to
the people, and the enumeration of certain rights in the Constitution
shall not be construed to deny or disparage others retained by the
people.[424]
The rights thus retained, that is, _not delegated_, are _fundamental
rights_, are inviolate, and to guard against transgressions of the high
powers delegated to government by the people are excepted out of the
general powers of government; and being excepted out of the general
powers, they are logically excepted out of the particular.
Thus, in final analysis, constitutional law in America is shaped and
determined by interpretation of these fundamental rights. The supreme
law cannot violate them. They comprise the Bills of Rights, or
Declarations of Rights of the State constitutions and the first ten
amendments of the federal Constitution.
152. There is no fixed order of these rights or priority among them.
The Constitution, as framed originally, forbade any religious test for
any federal office or trust.[425] The First Amendment forbids Congress
to make any law respecting an establishment of religion, or prohibiting
the free exercise thereof. The limitation is wholly on Congress. If any
such exists for a State it is found in the constitution of that State.
Crime cannot be protected under the claim or guise of being religion.
Thus polygamy, bigamy, or conduct, ceremonies or observance criminal
and offensive to the commonsense of mankind cannot be tolerated.[426]
Freedom of religion cannot be made a cloak for immorality or
crime.[427] The preservation of religious liberty is largely a
function of the States. The essentials here are: the equality of
religious establishments before the law; “exemption of all persons from
compulsory support of religious worship and from compulsory attendance
upon the same”[428]; freedom of conscience and speech in religious
matters, and entire exemption of the person from discrimination,
domination, censorship, or interference in matters of religion by the
State.
But this fundamental right does not free the person from responsibility
to the State for the results of his belief or conduct, in so far as
either imperils the State. Thus, so-called “religious belief” or
conduct which destroys or endangers peace and good order, or the
life, or lives, or reputation of a person or a community cannot work
exemption under the claim of religious liberty.[429]
Freedom of speech, of the press, and of assembling are ancient rights,
each won after long struggle against absolutism.[430] These rights are
inviolable, but the same principle applies to them as to religious
freedom: he who exercises them is responsible for the abuse of the
right.[431]
153. Every citizen is subject to the legislative power of the State,
and abuse of a fundamental right,—as of freedom of speech or of the
press in uttering a libel,—cannot exempt the party from prosecution. No
man can make plea of a fundamental right as making him “above the law.”
The law accords with the fundamental right.
The right to petition government for redress of grievances[432]
is essentially the right of freedom of speech in a particular
way. The right to keep and bear arms is essentially the right to
self-protection, but this right may not be abused with impunity; it
does not empower any person to take the law into his own hands, or
to carry weapons.[433] Carrying concealed weapons is not an exercise
of the right to bear arms, unless in the performance of a function,
the execution of an office, in which case such carrying is permitted
(licensed) by the State. Essentially the right to bear arms is akin to
the right to revolution as set forth in the Declaration of Independence.
The person, his or her papers and dwelling are exempt from
unwarrantable searches, seizure, or invasion. The exemption here goes
to the fundamental supremacy of the civil over the military authority.
A warrantable search is lawful because the sovereign—the State or the
United States—has the primary right of self-protection, safety, peace,
good order,—indeed, the right to realize the essential purposes and
ends of sovereignty. But the boundary between private right and public
necessity (another expression for sovereignty) must be drawn with
precision. The language of the Fourth Amendment is explicit.[434]
154. The first ten amendments prohibit the United States from violating
the fundamental rights of persons; they are a protection against
federal tyranny. The Thirteenth and Fourteenth Amendments prohibit the
States from violating certain fundamental rights of persons. Any one
comparing the Fifth and the Fourteenth Amendments discovers the same
language as to “due process of law” and “life, liberty, and property.”
The State constitutions protect persons in like manner. Thus the
fundamental right prevails in both jurisdictions,—that of the State and
that of the United States.
The Fifth Amendment does not exempt a person from presentment or
indictment, or trial, but recognizes his fundamental right to
protection by due process of law.[435]
The protection of the person is of his life, liberty, and property—his
rights to either of which are fundamental. Yet his life may be taken in
defense of the State, or of the United States; he may be deprived of
his liberty,—civil, political, or natural,—for cause, and his property
may be confiscated to the State, or to the United States, for like
reason. This apparent conflict between theory and fact is in no sense a
violation of the fundamental right of the person thus affected. He is
entitled to his fundamental rights; so are the several States and the
United States entitled to their respective fundamental rights: but they
are sovereignties; the person is not, and his fundamental rights to
life, liberty, and property give place to the rights of the sovereign.
155. Neither the State government nor the federal government is that
sovereign, but each is an agent of a sovereign. The sovereign can
do no wrong. To the extent that the individual person is identified
with sovereignty, he or she can do no wrong, and his or her rights
are primary as well as fundamental. For this reason the first ten
amendments specify the protection and the guarantees which apply to
the person as against the powers of the Government of the United
States.[436]
The test whether or not there is invasion of the fundamental rights
which are excepted out of the powers of government is the issue, “Is
sovereignty imperiled?” As against sovereignty, the person has in the
final test no rights whatever: that is no rights that are recognized
and protected by constitutional law. The supreme test is, however,
rarely made.
156. The fundamental rights outlined in the first ten, and in
the Thirteenth and Fourteenth Amendments to the Constitution are
essentially the right of the person to the protection of sovereignty
against acts of the government. The nature of this protection is
expressed in the Ninth and Tenth Amendments. Sovereignty does not
define its rights; it defines or enumerates powers which it delegates
to government. Were sovereignty to define (if it were possible to
define) its rights, it would limit itself, and to that extent cease
being sovereign. The fundamental rights[437] thus reserved (in addition
to those already mentioned but not in any sense exhaustive) are, the
right of equality before the law; of consequent equal protection of the
laws; of the exercise of the police power; of education; of employment;
of making contracts; of trial by jury; of being a person (not a thing)
and to realize and possess the privileges and immunities thereunto
pertaining.
157. Practically, these fundamental rights are realized through the
judiciary when the issue and test of their existence arise. Thus we
turn to judicial decisions for the interpretation of these rights,
or for declaration, in official form, of their primary rank as
“reserved to the people or to the States.” All legislation, State or
federal, must conform to them. Whether it actually does so conform
is determinable in and by courts of law, on the principle, declared
by Chief Justice Marshall, that “it is emphatically the province
and duty of the judicial department to say what the law is.” Thus
for the protection of these fundamental rights the judiciary, by
every principle of American constitutional law, is final, unless the
sovereign arouses himself and changes the function, or office of the
judiciary itself.[438] The sovereign may thus act, as the people of
a State, or of the United States.[439] The now familiar decision of
the Supreme Court as to the power of Congress over American territory
(as differing from a State in the Union)[440] recognizes and declares
that there are certain principles of natural justice which secure
dependencies against legislation manifestly hostile to their real
interests. These “principles of natural justice” as applied to
constitutional government and law undoubtedly mean fundamental rights
which secure persons, anywhere under American jurisdiction, “against
legislation manifestly hostile to their real interests”; for the
essential interest of the person,—that is, the “citizen” as defined in
the Constitution,—is the interest of the sovereign,—the people of the
United States, or of a State.
158. It is evident that there is a close relation between the law
of constitutional limitations and the law of fundamental rights in
America. A limitation is not always a right, in law; a right is not
always a limitation; but the law of constitutional government in
America—and this means the constitutional law of America—is worked out
by judicial interpretation of these limitations and these rights.
The right of freedom of worship and of exemption from compulsion
to attend any place of worship is not violated by reading from the
Bible in the public schools, or reading selections from the Bible.
Such a reading does not convert the public school into a religious or
theological seminary, nor is the reading a conversion of the public
money to the use of a religious sect. “I am not able to see,” observed
the court, “why extracts from the Bible should be proscribed, when
the youth are taught no better authenticated truths from profane
history.”[441] If under the influence of a religious belief (polygamy)
that it was right, a man deliberately married a second time having a
first wife living, the want of consciousness of evil intent did not
excuse him, but criminal intent would be implied.[442]
The compulsory production of a man’s private papers to establish a
criminal charge against him is within the scope of the Fourth Amendment
to the Constitution, in all cases in which a search or seizure
would be; because it is a material ingredient, and effects the sole
object of the search and seizure. Compulsory production of papers is
unwarrantable search and seizure. Such unwarrantable seizure of books
and papers is compelling a person to be a witness against himself.
The offense consists in the “invasion of the indefeasible right of
personal security.” The manner of the invasion whether by force or by
quiet entrance is not the violation; the violation of the right is the
invasion of it, in whatever manner.[443]
The law is perfectly well settled that the first ten amendments to
the Constitution, commonly known as the Bill of Rights, were not
intended to lay down any novel principles of government, but simply
to embody certain guaranties and immunities which we had inherited
from our English ancestors, and which had, from time immemorial,
been subject to certain well-recognized exceptions arising from
the necessities of the case. In incorporating these principles
into the fundamental law there was no intention of disregarding
the exceptions, which continued to be recognized as they had been
formally expressed. Thus the freedom of speech and of the press
(Art. i.) does not permit the publication of libels, blasphemous,
or indecent articles, or other publications injurious to public
morals or private reputation; the right of the people to keep and
bear arms (Art. x., 11) is not infringed by laws prohibiting the
carrying of concealed weapons; the provision that no person shall
be twice put in jeopardy, (Art. v.) does not prevent a second
trial, if upon the first trial the jury failed to agree, or if the
verdict was set aside upon the defendant’s motion (United States
_v._ Ball, 163 U. S., 662, 672); nor does the provision of the same
article that no one shall be a witness against himself impair his
obligation to testify, if a prosecution against him be barred by
the lapse of time, or by statutory enactment (Brown _v._ Walker,
161 U. S., 591 and cases cited); nor does the provision that an
accused person shall be confronted with the witnesses against him
prevent the admission of dying declarations, or the depositions of
witnesses who have died since the former trial.[444]
159. “The words ‘due process of law’ were undoubtedly intended to
convey the same meaning as the words, ‘by the law of the land’ in
Magna Charta.” This means, in American constitutional law, to use
Webster’s words in the Dartmouth College case,—“the general law—a
law which hears before it condemns; which proceeds upon inquiry, and
renders judgment only after trial.” Cooley states it as meaning “that
every citizen shall hold his life, liberty, property, and immunities,
under the protection of the general rules which govern society.”[445]
This means that whatever is the actual law of the land, the regular
and established practice of courts and the legal landmarks of society
defines the meaning of the phrase “due process of law.” A man who by
the laws of his State has had a fair trial in a court of justice,
according to the modes of proceeding applicable to such a case has been
tried by due process of law.[446]
It is within the police power of a State to regulate the hours during
which a business, say washing and ironing, may be carried on, and the
kind of building, whether or not fireproof, which may be used for such
business, but discrimination against citizens or aliens effecting
the elimination of certain citizens or aliens from carrying on the
business, while others are permitted to carry it on under similar
conditions is a violation of the Fourteenth Amendment which secures
to every person the equal protection of the laws. The discrimination
is none the less unconstitutional because the person discriminated
against is an alien, when the treaty between the United States and
the sovereignty to which the alien owes allegiance secures to the
alien in the United States “the same rights, privileges, immunities,
and exemptions as may be enjoyed by the citizens or subjects of the
most favored nation.” For a treaty is part of the supreme law of the
land.[447]
The principle here also includes another well-settled rule of American
constitutional law, that while a State may exercise its police
power within its own jurisdiction, imposing restrictions on foreign
corporations doing business within its territory, it cannot so exercise
its police power as to infringe upon interstate or foreign commerce.
Thus a police regulation of a State which prevents or obstructs,
directly or indirectly, a corporation within its territory, as a
party that is engaged or would be engaged in commerce, conflicts
with the power of Congress to regulate commerce and therefore is
unconstitutional. But police regulation of the corporation as to
other matters is not a violation of the Fourteenth Amendment.[448]
The principle here is “to exclude everything that is arbitrary and
capricious in legislation affecting the rights of the citizen.”[449]
160. The Fourteenth Amendment takes no police powers from the States
that were reserved to them when the Constitution was adopted. The
States may still do lawfully as they will with their own, and this
means that they will exercise authority over their own jurisdiction.
That Amendment “in declaring that no State” shall deprive any person
of life, liberty, or property without due process of law, nor deny
to any person within its jurisdiction the equal protection of the
laws, undoubtedly intended not only that there should be no arbitrary
deprivation of life or liberty, or arbitrary spoliation of property,
but that equal protection and security should be given to all under
like circumstances in the enjoyment of their personal and civil rights;
that all persons should be equally entitled to pursue their happiness
and acquire and enjoy property; that they should have like access to
the courts of the country for the protection of their persons and
property, the prevention and redress of wrongs, and the enforcement of
contracts; that no impediment should be interposed to the pursuits of
any one except as applied to the same pursuits by others under like
circumstances; that no greater burdens should be laid upon one than are
laid upon others in the same calling and condition, and that in the
administration of criminal justice no different or higher punishment
should be imposed upon one than such as is prescribed to all for like
offenses. But neither the Amendment, broad and comprehensive as it is,
nor any other Amendment was designed to interfere with the power of
the State, sometimes termed its police power, to prescribe regulations
to promote the health, peace, morals, education, and good order of the
people, and to legislate so as to increase the industries of the State,
develop its resources, and add to its wealth and prosperity. From the
very necessities of society, legislation of a special character, having
these objects in view, must often be had in certain districts, such as
for draining marshes and irrigating arid plains. Special burdens are
often necessary for general benefits,—for supplying water, preventing
fires, lighting districts, cleaning streets, opening parks, and many
other objects. Regulations for these purposes may press with more or
less weight upon one than upon another, but they are designed, not
to impose unequal or unnecessary restrictions upon any one, but to
promote, with as little individual inconvenience as possible, the
general good. Though, in many respects, necessarily special in their
character, they do not furnish just ground of complaint if they operate
alike upon all persons and property under the same circumstances and
conditions. Class legislation, discriminating against some and favoring
others, is prohibited; but legislation which, in carrying out a public
purpose, is limited in its application, if within the sphere of its
operation it affects alike all persons similarly situated is not within
the Amendment.[450]
161. The right of trial by jury, reserved as a fundamental right, is a
common law right of great antiquity. As the word “jury” is used in the
Constitution, and as jury trial is secured by the Seventh Amendment,
its meaning must be discovered from English history and common-law
practice. That history and that practice alike prove that only a court
of law can have a jury, and that a body of men free from judicial
control is not and never was a common-law jury; that is, according to
the Seventh Amendment, a constitutional jury is a jury in a court of
record, and a number of men, a so-called jury in a court of a justice
of the peace, is not a jury in the sense in which that word is used in
the Constitution. A court, when we consider its derivation and history,
comprises the judge assisting the jury and the jury assisting the
judge. The right of trial by jury means for many purposes the same as
the right to due process of law.[451]
162. The fundamentals of government are a unit, like government itself,
and he who rests his case on one fundamental right really rests his
case on all. The principle which permeates and includes all these
fundamentals—usually set forth in Bills of Rights—is thus expressed by
the Supreme Court:
When we consider the nature and the theory of our institutions of
government, the principles upon which they are supposed to rest,
and review the history of their development, we are constrained
to conclude that they do not mean to leave room for the play and
action of purely personal and arbitrary power. Sovereignty itself
is, of course, not subject to law, for it is the author and source
of law; but in our system, while sovereign powers are delegated to
the agencies of government, sovereignty itself remains with the
people, by whom and for whom all government exists and acts. And
the law is the definition and limitation of power. It is, indeed,
quite true, that there must always be lodged somewhere, and in some
person or body, the authority of final decision; and in many cases
of mere administration the responsibility is purely political,
no appeal lying except to the ultimate tribunal of the public
judgment, exercised either in the pressure of opinion or by means
of the suffrage. But the fundamental rights to life, liberty, and
the pursuit of happiness, considered as individual possessions,
are secured by those maxims of constitutional law which are the
monuments showing the victorious progress of the race in securing
to men the blessings of civilization under the reign of just and
equal laws, so that, in the famous language of the Massachusetts
Bill of Rights, the government of the Commonwealth “may be a
government of laws and not of men.” For the very idea that one man
may be compelled to hold his life, or the means of living, or any
material right essential to the enjoyment of life, at the mere will
of another, seems to be intolerable in any country where freedom
prevails, as being the essence of slavery itself.[452]