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courts of the Union, would be precluded from inquiring into the justice of their action, or questioning its validity, because of any supposed conflict with fundamental rules of right or of government, unless they should be able to show collision at some point between the instrument thus formed and that paramount law which constitutes, in regard to the subjects it covers, the fundamental rule of action throughout the whole United States.1
How far the constitution of a State shall descend into the particulars of government is a question of policy addressed to the convention which forms it. Certain things are to be looked for in all these instruments; though even as to these there is great variety, not only of substance, but also in the minuteness of their provisions to meet particular cases.
I. We are to expect a general framework of government to be designed, under which the sovereignty of the people is to be exercised by representatives chosen for the purpose, in such manner as the instrument provides, and with such reservations as it makes.
1 All the State constitutions now dent Johnson; but as it is the hope contain within themselves provisions and trust of our people that the occafor their amendment. Some require sion for discussing such questions will the question of calling a convention never arise again, we do not occupy to revise the constitution to be sub- space with them in this work. It mitted to the people at stated periods; suffices for the present to say, that others leave it to the legislature to Congress claimed, insisted upon, and call a convention, or to submit to the enforced the right to prescribe the people the question of calling one; steps to be taken and the conditions while the major part allow the legis- to be observed in order to restore lature to mature specific amendments these States to their former positions to be submitted to the people sepa- in the Union, and the right also to rately, and these become a part of the determine when the prescribed condiconstitution if adopted by the requi- tions had been complied with, so as site vote.
to entitle them to representation in When the late rebellion had been Congress. There is some discussion put down by the military forces of of the general subject in Texas v. the United States, and the State gov- White, 7 Wall. 700. And see Gunn ernments which constituted a part of v. Barry, 15 Wall. 610. the disloyal system had been dis- It has been decided in some cases placed, serious questions were raised that a constitution is to have effect as to the proper steps to be taken in from the time of its adoption by the order to restore the States to their people, and not from the time of the harmonious relations to the Union. admission of the State into the Union These questions, and the controversy by Congress. Scott v. Young Men's over them, constituted an important Society's Lessee, 1 Doug. (Mich.) part of the history of our country 119; Campbell v. Fields, 35 Texas, during the adıninistration of Presi- 751.
II. Generally the qualifications for the right of suffrage will be declared, as well as the conditions under which it shall be exercised.
III. The usual checks and balances of republican government, in which consist its chief excellencies, will be retained. The most important of these are the separate departments for the exercise of legislative, executive, and judicial power; and these are to be kept as distinct and separate as possible, except in so far as the action of one is made to constitute a restraint upon the action of the others, to keep them within proper bounds, and to prevent hasty and improvident action. Upon legislative action there is, first, the check of the executive, who will generally be clothed with a qualified veto power, and who may refuse to execute laws deemed unconstitutional ; and, second, the check of the judiciary, who may annul unconstitutional laws, and punish those concerned in enforcing them. Upon judicial action there is the legislative check, which consists in the power to prescribe rules for the courts, and perhaps to restrict their authority; and the executive check, of refusing aid in enforcing any judgments which are believed to be in excess of jurisdiction. Upon executive action the legislature has a power of restraint, corresponding to that which it exercises upon judicial action; and the judiciary may punish executive agents for any action in excess of executive authority. And the legislative department has an important restraint upon both the executive and the judiciary, in the power of impeachment for illegal or oppressive action, or for any failure to perform official duty. The executive, in refusing to execute a legislative enactment, will always do so with the peril of impeachment in view.
IV. I ocal self-government having always been a part of the English and American systems, we shall look for its recognition in any such instrument. And even if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view.1
V. We shall also expect a declaration of rights for the protection of individuals and minorities. This declaration usually contains the following classes of provisions :
1. Those declaratory of the general principles of republican government; such as, that all freemen, when they form a social compact, are equal, and no man, or set of men, is entitled to exclusive, separate public emoluments or privileges from the community, but in consideration of public services; that absolute, arbitrary power over the lives, liberty, and property of freemen exists nowhere in a republic, not even in the largest majority; that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, happiness, security, and the protection of property; that for the advancement of these ends they have at all times an inalienable and indefeasible right to alter, reform, or abolish their government in such manner as they may think proper; that all elections shall be free and equal ; that no power of suspending the laws shall be exercised except by the legislature or its authority; that standing armies are not to be maintained in time of peace; that representation shall be in proportion to population ; that the people shall have the right freely to assemble to consult of the common good, to instruct their representatives, and petition for redress of grievances ; and the like.
i Park Commissioners 0. Common Council of Detroit, 28 Mich. 228; People v. Albertson, 55 N. Y. 50.
2. Those declaratory of the fundamental rights of the citizen: as that all men are by nature free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety and happiness ; that the right to property is before and higher than any constitutional * sanction; that the free exercise and enjoyment [* 36] of religious profession and worship, without discrimination or preference, shall for ever be allowed ;' that every man may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right; that every man may bear arms for the defence of himself and of the State ; that the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, nor shall soldiers be quartered upon citizens in time of peace; and the like.
3. Those declaratory of the principles which ensure to the citizen an impartial trial, and protect him in his life, liberty, and property against the arbitrary action of those in authority : as that no bill
1 Hale v. Everett, 53 N. H. 9; Board of Education v. Minor, 23 Ohio, N. s. 211.
of attainder or ex post facto law shall be passed ; that the right to trial by jury shall be preserved ; that excessive bail shall not be required, nor excessive punishments inflicted ; that no person shall be subject to be twice put in jeopardy for the same offence, nor be compelled in any criminal case to be a witness against bimself, nor be deprived of life, liberty, or property without due process of law; that private property shall not be taken for public use without compensation ; and the like.
Other clauses are sometimes added declaratory of the principles of morality and virtue; and it is also sometimes expressly declared what indeed is implied without the declaration — that every thing in the declaration of rights contained is excepted out of the general powers of government, and all laws contrary thereto shall be void.
Many other things are commonly found in these charters of government; 1 but since, while they continue in force, they are to remain absolute and unchangeable rules of action and decision, it is obvious that they should not be made to embrace within their iron grasp those subjects in regard to which the policy or interest of the State or of its people may vary from time to time, and which are therefore more properly left to the control of the legislature, which can more easily and speedily make the required changes.
In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the
rulers, but they do not measure the rights of the governed. [*37] ** What is a constitution, and what are its objects? It is
easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights ; it is not the fountain of law, nor the incipient state of government;
1 " This, then, is the office of a the people; to ascertain, limit, and written [free] constitution: to delegate define the extent of the authority thus to various public functionaries such of delegated ; and to reserve to the peothe powers of government as the peo- ple their sovereignty over all things ple do not intend to exercise for not expressly committed to their themselves; to classify these powers, representatives.” E. P. Hurlbut in according to their nature, and to com- Human Rights and their Political init them to separate agents; to pro
Guaranties. vide for the choice of these agents by
it is not the cause, but consequence, of personal and political freedom ; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the framework of the political government, and necessarily based upon the preexisting condition of laws, rights, habits, and modes of thought. There is nothing primitive in it: it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent, and incapable of definition.” 1
1 Hamilton d. St. Louis County mon the local community to redress Court, 15 Mo. 13, per Bates, arguendo. local evils, instead of relying upon And see Matter of Oliver Lee & Co.'s king or legislature at a distance to do Bank, 21 N. Y. 9; Lee v. State, 26 90,— if a recognition of all these were Ark. 265-6. “Written constitutions to be stricken from the body of our sanctify and confirm great principles, constitutional law, a lifeless skeleton but the latter are prior in existence to might remain, but the living spirit, the former." 2 Webster's Works, that which gives it force and attrac392. See also 1 Bl. Com. 124; tion, which makes it valuable, and 2 Story, Life and Letters, 278; Sidney draws to it the affections of the peoon Government, c. 3, secs. 27 and 33. ple; that which distinguishes it from " If this charter of State government the numberless constitutions, so called, which we call a constitution were all which in Europe have been set up and there was of constitutional command; thrown down within the last hundred if the usages, the customs, the max- years, many of which, in their exims, that have sprung from the habits pressions, seemed equally fair and to of life, modes of thought, methods of possess equal promise with ours, and trying facts by the neighborhood, and have only been wanting in the supmutual respousibility in neighborhood port and vitality which these alone interests; the precepts that have come can give, this living and breathing to us from the revolutions which over- spirit which supplies the interpretaturned tyrannies; the sentiments of tion of the words of the written charmanly independence and self-control ter would be utterly lost and gone." which impelled our ancestors to sum- People v. Hurlbut, 24 Mich. 44-107.