The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
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]
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