Francis Newton Thorpe

“ The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. ”

“ Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another there is presented a question involving the validity of any act of any Legislature, State or federal, and the decision necessarily rests on the competency of the Legislature to so enact, the court must, in the exercise of its solemn duties, determine whether the act is constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. ”

“ 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. ”

“ 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.” ”

“ No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence when they act, they act in their States. But the measures they adopt do not, on that account, cease to be the measures of the people themselves, or become the measures of the State governments. From these conventions the Constitution derives its whole authority. The government proceeds directly from the people ”

“ 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 restraint of impeachment is not legislation nor the exercise of legislative powers vested in Congress. Impeachment is the accusation made by the House of Representatives that the President has not faithfully executed his office. Conviction is the adverse judgment of the Court of Impeachment,—the Senate sitting under special oath for a special purpose, not legislative, as duly provided for by the Constitution. ”

“ 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. ”

“ The constitutional law of America is that a State in the Union cannot be compelled to perform its contracts, although attempts on its part to avoid them may be judicially resisted, and State laws impairing the obligation of contracts are void. Yet the legislative department of a State represents its polity and its will and by every principle of justice is called upon to hold public obligations inviolate. ”

“ For as the United States guarantees to each State a republican form of government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. ”

“ In creating inferior courts, Congress determines the jurisdiction but not the judicial power exercisable within the jurisdiction. Congress does not control the judges in their execution of their office. ”

“ It is not the delegation to Congress of power to regulate commerce that makes the exercise of a similar power by the State void; it is the actual exercise by Congress of its power to regulate commerce that works the prohibition. ”

“ 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 ”

“ The only way in which commerce between the States can be legitimately affected by State laws is when, by virtue of its police power, and by its jurisdiction over persons and property within its limits, a State provides for the security of the lives, limbs, health, and comfort of persons and the protection of property. ”

“ Congress, by reason of the nature of its functions, is empowered to determine what shall and what shall not be carried in the mails, and the right of freedom of speech does not give the right to injure the objects or to defeat the purposes which government is ordained and established to further and protect.80 But the State, in exercise of its police power, may undoubtedly protect its citizens from injury springing out of that intercourse known as the mail service so long as it is wholly intrastate,—that is, within its jurisdiction. ”

“ It is the government of all; its powers are delegated by all; it represents all, and acts for all. Though any one State may be willing to control its operations, no State is willing to allow others to control them. ”

“ In the operations of government, the delegation of authority by the executive, the legislative, or the judiciary is rare. The constitutional test, in either case, is purpose and authority. Thus a municipal corporation is a representative not only of the State, but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. ”

“ 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.” ”

“ Both the States and the United States are forbidden by the Constitution to enact ex post facto laws. The prohibition affects every citizen as securing him from the peril of legislation of the kind forbidden. It is a sweeping limitation of power for his or her benefit, and operates for all citizens of whatever age, condition, or circumstance. An ex post facto law is one that makes an action done before the passing of the law, and which was innocent when done, criminal, and punishes that action ”

“ The people of the United States, like other sovereignties, possess not only legislative and executive functions, but also judicial. The possession of these three powers by sovereignty is essential to its existence and a condition of any conception of it. ”

“ Thus the courts never decide as to the wisdom or folly of an executive or legislative act,—and in one form or another, every act of Congress or President is politically wise or unwise according to the political belief of the critic. ”

“ While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the government are distributed, it is inherently the weakest of them all. ”

“ The political privileges of citizenship rest on a different conception of government. Political privileges—of which the most important are the right to vote and the right to be voted for, and to execute an office because of election to office—are not fundamental, that is, they are not civil rights.228 The State, or the United States, has the right to prescribe qualifications for an elector, or for candidacy for any office. ”

“ Neither the government of the United States nor that of a State is sovereign, for each possesses only delegated powers. But the powers delegated to the two governments are not for all purposes the same, or of equal extent. ”

“ The bill, or measure, proposed, may come from a private citizen, or a State Legislature, or a railroad directorate, or the War Department, or a Committee of the House, or from some other source: it is Congress alone that can make it law. There is, however, a powerful check on the Executive as suggesting legislation: the check of public opinion, of custom, of precedent. These and like checks are sometimes called the limitations of the unwritten constitution. ”