CHAPTER XI

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]