Constitutional right

“ While strongly in favor of the vigorous execution of constitutional laws, I cannot but shrink from hastily fastening upon the statute-books of the country legislative acts which, in my opinion at least, while they may afford aid to some, would conjure up new and great dangers to the constitutional rights and liberties of all. ”

“ This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or their revolutionary right to dismember or overthrow it. I cannot be ignorant of the fact that many worthy and patriotic citizens are desirous of having the national Constitution amended. ”

“ But, Sir, the people have wisely provided, in the Constitution itself, a proper, suitable mode and tribunal for settling questions of constitutional law. There are in the Constitution grants of powers to Congress, and restrictions on these powers. There are, also, prohibitions on the States. Some authority must, therefore, necessarily exist, having the ultimate jurisdiction to fix and ascertain the interpretation of these grants, restrictions, and prohibitions. The Constitution has itself pointed out, ordained, and established that authority. ”

“ On this subject can any thing be more pointed than the provisions of the constitution, which, contrary to most of the other provisions, cannot be altered but with the consent of every State in the Union. Why then shall we cry over what we cannot prevent, like a school boy? Each State, so long as she confines herself within the limits of her constitutional powers, must be the exclusive judge of her own conduct; and it becomes not one State, influenced by different feelings, habits, and interests, to pronounce upon the conduct of another. ”

“ The ordinance is founded, not on the indefeasible right of resisting acts, which are plainly unconstitutional and too oppressive to be endured; but on the strange position, that any one state may not only declare an act of congress void, but prohibit its execution,—that they may do this consistently with the constitution,—that the true construction of that instrument permits a state to retain its place in the Union, and yet be bound by no other of its laws, than those it may choose to consider as constitutional. ”

“ But when a law has been passed by Congress, and approved by the President, it is now no longer in the power, either of the same President, or his successors, to say whether the law is constitutional or not. He is not at liberty to disregard it; he is not at liberty to feel or to affect "constitutional scruples," and to sit in judgment himself on the validity of a statute of the government, and to nullify it, if he so chooses. ”

“ Nor is an independent judiciary less useful, as a check upon the legislative power, which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown, hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution, as the paramount law, and the highest evidence of the will of the people. ”

“ Our discussion naturally divides itself into two branches: first, as to the right, or constitutional power, to adopt the proposed amendment; and secondly, as to the expediency and necessity of it.
I. THE RIGHT, UNDER THE CONSTITUTION, TO ADOPT THE PROPOSED AMENDMENT.
No characteristic of the American people is more marked than their regard for law; and in nothing is that characteristic more striking than in their respect for the Constitution, the supreme law of the land. Whatever seems to come in conflict with that supreme law must encounter an irresistible odium. ”

“ The Congress was created on the assumption that enactment of this free country's laws could be safely entrusted to the representatives of the people in Congress, and to no other official or government agency. The people who are called on to obey laws have a constitutional right to have them passed only in this constitutional way. ”

“ We deal with a constitutional right, since freedom of association is included in the bundle of First Amendment rights made applicable to the States by the Due Process Clause of the Fourteenth Amendment. ”

“ The great scheme of our constitutional liberty rests upon a proper distribution of power between the State and Federal authorities, and experience has shown that the harmony and happiness of our people must depend upon a just discrimination between the separate rights and responsibilities of the States and your common rights and obligations under the General Government; and here, in my opinion, are the considerations which should form the true basis of future concord in regard to the questions which have most seriously disturbed public tranquillity. ”

“ That, in cases in which a law of the United States may infringe the constitutional right of a state, but which, in its operation, cannot be brought before the Supreme Court, under the terms of the jurisdiction expressly given to it over particular persons or matters, that court is not created the umpire between a state that may deem itself aggrieved and the general government. ”

“ To refuse to nullify legislation the frailties of which we think we see, is to respect the bounds of our Constitutional authority and not to indulge in a fiction. See James Bradley Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 Harv.L.Rev. 129. To allow laws to stand is to allow laws to be made by those whose task it is to legislate. ”

“ The clear-sighted provision in the national constitution, as in the constitutions of the different states, by which the frame of government can be moulded at will by the public voice, and so made to keep pace in progress with the public mind, is the master-stroke in constitutional law. ”

“ The Civil Rights Bill and the Freedmen's Bureau Bill and the proposed constitutional amendments, with the amendment already adopted and recognized as the law of the land, do not reach the difficulty, and cannot, unless the whole structure of the government is changed from a government by States to something like a despotic central government, with power to control even the municipal regulations of States, and to make them conform to its own despotic will. ”

“ And, of course, the existence of such awesome judicial power cannot be buttressed or created by relying on the word 'procedural.' Whether labeled as 'procedural' or 'substantive,' the Bill of Rights safeguards, far from being mere 'tools with which' other unspecified 'rights could be fully vindicated,' are the very vitals of a sound constitutional legal system designed to protect and safeguard the most cherished liberties of a free people. ”

“ To the contrary, the elementary principle is that the right to pass upon the greater question, the constitutional power of Congress, draws to it the authority to also decide all the essential incidents, even though otherwise there might not be a right to consider them. ”

“ It adds to the stability and dignity, as well as to the authority, of the Constitution, that it rests on this legitimate and solid foundation. The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. ”

“ The states may now by a constitutional amendment, with few limitations, change the whole structure and powers of the government, and thus legalize any present excess of power. And the general right of a society in other cases to change the government at the will of a majority of the whole people, in any manner, that may suit its pleasure, is undisputed, and seems indisputable. If there be any remedy at all for the minority in such cases, it is a remedy never provided for by human institutions. ”

“ These safeguards were written into our Constitution not by judges, but by Constitution makers. Freedom in this Nation will be far less secure the very moment that it is decided that judges can determine which of these safeguards "should" or "should not be imposed" according to their notions of what constitutional provisions are consistent with the "traditions and conscience of our people." ”

“ Therefore, as authority for Congress, you have two sources in the Constitution itself,—first, the guaranty clause, and, secondly, the Constitutional Amendment, each sufficient, the two together a twofold sufficiency. To establish the Equal Rights of All, no further Amendment is needed. The actual text is exuberant. Instead of adding new words, it will be enough, if you give those that exist the natural force belonging to them. ”

“ The constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all. If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates ”

“ The constitutional provision, therefore, must mean that no agency of the State or of the officers or agents by whom its powers are exerted shall deny to any person within its jurisdiction the equal protection of the laws. ”

“ It will not, I think, be denied that acts of congress passed in pursuance of the constitution, when in conflict with state laws, must prevail. It has never been doubted that the law under consideration is constitutional. ”

“ In imperfectly balanced governments, where some attempt is made to set constitutional limits to the impulses of the strongest power, but where that power is strong enough to overstep them with at least temporary impunity, it is only by doctrines of constitutional morality, recognized and sustained by opinion, that any regard at all is preserved for the checks and limitations of the constitution. ”

“ And since they have the power of doing this, the theory of the Constitution ought to suppose that they will wish to do it, since the very principle of constitutional government requires it to be assumed that political power will be abused to promote the particular purposes of the holder; not because it always is so, but because such is the natural tendency of things, to guard against which is the especial use of free institutions. ”

“ For it misses the whole point of our constitutional history to assume that 'government,' or any branch of government, somehow has rights and powers of its own apart from those necessarily attending the proper performance of its constitutional functions. ”

“ It is to fling away your arms in the very face of the enemy. It is to spike the Constitution at a moment when its full cannonade is needed for the overthrow of wrong. Clearly the power is yours, and upon your heads will be the fearful responsibility, if you fail to exercise it.
4. From this power in the Constitution I pass to another, also in the Constitution, supplied by the second clause of the Constitutional Amendment. It is there provided that Congress shall “enforce” the abolition of Slavery by “appropriate legislation.” ”

“ The power to provide for the enforcement of the principles embodied in the recent Constitutional Amendments is vested by those amendments in the Congress of the United States, and we declare it to be the solemn obligation of the legislative and executive departments of the Government to put into immediate and vigorous exercise all their constitutional powers for removing any just causes of discontent on the part of any class, and for securing to every American citizen complete liberty and exact equality in the exercise of all civil, political and public rights. ”

“ And the Senate is warned not to give the protection found in the elective franchise, either by Constitutional Amendment or by Act of Congress,—that such a Constitutional Amendment would not [Pg 344] be adopted by the people, and therefore we ought not to present it,—and that Congress has not the power to establish equality in political rights. Sir, I do not despair of the Republic,—I will not, I cannot. ”

“ And since the constitutional command is without restriction or limitation, the right unlike those guaranteed by the Fourteenth and Fifteenth Amendments, is secured against the action of individuals as well as of states. ”

“ When the Framers wrote the Bill of Rights they enshrined in the form of constitutional guarantees those rights-in part substantive, in part procedural which experience indicated were indispensable to a free society. Some would disagree as to their importance; the debate concerning them did indeed start before their adoption and has continued to this day. Yet the constitutional conception of 'due process' must, in my view, include them all until and unless there are amendments that remove them. ”

“ In the Ordinance, Congress had provided a system of fundamental law, intended to be of perpetual obligation, for new communities, whose legislative power was to be moulded by certain original maxims of assumed justice and right. The opportunity thus afforded for shaping the limits of political sovereignty according to the requirements of a preconceived policy, enabled the framers of the Ordinance to introduce a limitation, which is not only peculiar to American constitutional law, but which, like many features of our institutions, grew out of previous abuses. ”

“ While the limitations thus far cited are specific and expressed, they go less to the fundamentals of government and civil rights than do other limitations expressed in the Constitution, and notably in the Amendments.375
It is not unusual that a State constitution declares that to guard against transgressions of the high powers of government delegated by the people through them, everything in the article, commonly known as the Bill of Rights, is excepted out of the general powers of government, and shall forever remain inviolate. ”