The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
As respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging freedom of speech or the press, or the
right of the people peaceably to assemble and to petition to government
for a redress of grievances, Congress can make no law whatever.[377]
Nor can Congress infringe the right of the people to keep and bear
arms, or violate their right to be secure in their persons, houses,
papers, and effects, or pass any law holding a person to answer for a
capital or otherwise infamous crime unless on presentment or indictment
of a grand jury, except in cases arising in the land or naval forces,
or in the militia when in the actual service of the United States in
time of war, or public danger; or pass any law compelling any person
to be subject for the same offence twice to be put in jeopardy of life
or limb, or be compelled in any criminal case to be a witness against
himself, or be deprived of life, liberty, or property, without due
process of law; or pass any law taking private property for public use
without just compensation.[378]
The practical effect of the limitations expressed in the Fifth
Amendment can be known only by judicial interpretation, and decision
of cases instituted under it; no theoretical definition can anticipate
these decisions of the Supreme Court. The principle involved is the
protection of certain fundamental rights of the people. In a similar
manner do the Sixth, Seventh, and Eighth Amendments guard fundamental
rights and limit the legislative power delegated to Congress by the
people of the United States. This means that Congress has no power to
deny or to disparage rights enumerated in these Amendments which are,
as a group, enumerative of rights at common law. Nor are the rights
enumerated, or set forth, in the Constitution as (practically) excepted
out of the powers of government, and forever inviolate, the only rights
which Congress, in exercising its powers, is inhibited from violating.
Other and unmentioned rights of the people are distinctly implied,[379]
as retained by them, and the Tenth Amendment is a general limitation of
Congress, President, and Courts, for it declares that “The powers not
delegated to the United States by the Constitution, nor prohibited by
it to the States, are reserved to the States respectively, or to the
people.”[380]
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