402 Art. v.

403 The Sixteenth Amendment (income tax) bears most heavily on States having large cities and a manufacturing population. It is possible that States which would be but slightly affected by a proposed amendment, might favor and ratify it; to avoid this possible discrimination, the suggestion has been made that in such a case the power of a State to ratify or to oppose ratification should be in proportion to its interests as affected by the proposed amendment. To this suggestion answer has been made that the Constitution is national, not local, in purpose and operation.

404 Art. vi., 2, 3.

405 Tenth Amendment.

406 Ninth Amendment.

407 The first quotation is from Downes v. Bidwell, 182 U. S., 244 (1901); the second, from Gibbons v. Ogden, 9 Wheaton, 235 (1824), decision by Marshall. The application of the principle laid down by Chief Justice Marshall in 1824 and elaborated, at times, by the Supreme Court,—as in 1901,—was discussed by the eminent jurist, Thomas M. Cooley, in a brief address to the North Dakota Constitutional Convention, July 17, 1889. At that time he was Chairman of the Interstate Commerce Commission. “Don’t, in your constitution-making, legislate too much. In your constitution you are tying the hands of the people. Don’t do that to any such extent as to prevent the Legislature, hereafter, from meeting all evils that may be within the reach of proper legislation. Leave something for them. Take care to put proper restrictions upon them, but at the same time leave what properly belongs to the field of legislation to the Legislature of the future. You have got to trust somebody in the future and it is right and proper that each department of government should be trusted to perform its legitimate functions.” Proceedings and Debates of the First Constitutional Convention of North Dakota, Assembled in the City of Bismarck, July 4 to August 17, 1889, p. 67. (Italization in text, not in original.)

408 Thirty-three States have an elective judiciary. In Maine, New Hampshire, Massachusetts, Connecticut, Delaware, Mississippi, and New Jersey, the Governor nominates and the Senate confirms judges; in Rhode Island, Vermont, South Carolina, and Virginia, the Legislature elects the judges; in Florida, the Governor appoints judges of the Superior Courts and judges of the Supreme Court are elected by the people.

409 Strictly executive functions are not within the jurisdiction of courts of law. See the discussion in Chapter VII.

410 Marbury v. Madison, 1 Cranch, 137 (1803).

411 Art. vi., 2, 3.

412 Chicago, etc., Ry. Co. v. Wellman, 143 U. S., 339 (1892); Frees v. Ford, 6 New York, 176 (1852); Commonwealth v. McCloskey, 2 Rawle (Pa.) 374; Wellington, Petitioner, 16 Pickering (Mass.), 96.

413 McCulloch v. Maryland, 4 Wheaton, 421 (1819).

414 Idem., 423.

415 No. lxxxiv.

416 Pennsylvania and the Federal Constitution, McMaster and Stone, 254. Both Hamilton and Wilson were overruled by the public demand for a Bill of Rights, and the first ten Amendments were speedily added to the Constitution.

417 Ogden v. Saunders, 12 Wheaton, 332 (1827); Martin v. Hunter’s Lessee, 1 Wheaton, 304 (1816); United States v. Aaron Burr, Cotton’s Constitutional Opinions of John Marshall, 1.100; Sturgis v. Crowningshield, 4 Wheaton, 122 (1819); Cohens v. Virginia, 6 Wheaton, 264 (1821); Cooley, Constitutional Limitations, 6th Edition, 204.

418 Norton v. Shelby County, 118 U. S., 425.

419 The relation of the judiciary to ministerial officers has already been examined; see Chapters VII and VIII. But see in this connection, the Secretary v. McGarrahan, 9 Wallace, 298; United States v. Black, 128 U. S., 40; United States v. Windom, 137 U. S., 636; United States v. Blaine, 139 U. S., 306; State ex rel. v. Stone, 120 Missouri, 428.

420 Pennsylvania, 1873, Art. iv. §16. This provision does not empower the Governor to cut down an item, but in practice, it is so construed.

421 As sovereignty is a unit, any examination of particular aspects of it must be but a partial examination of its operations. The Constitution of the United States is a unit, in so far as the sovereignty,—the people of the United States,—have made it the expression of their plan of government. It follows that close examination of any department or feature of the Constitution as a plan of government discloses that feature in relation with other features; the Constitution is an expression of a mass of relations. Thus it is that a decision of the Supreme Court may relate to several matters, seemingly without relation, but necessarily co-related. The present chapter on The Law of Limitations discusses executive, legislative, and judiciary and the principles of government by which it acts. The entire subject of American constitutional law must be viewed as a whole. See Pollock v. Farmers’ Loan and Trust Co., 158 U. S., 601 (1895); Field v. Clark, 143 U. S., 649 (1892). Also The Federalist, Nos. xliv.-lvi.

422 Art. ii., 2: 2.

423 American Insurance Company v. Canter, 1 Peters, 511.

424 Amendments IX., X.

425 Art. vi., 3. The ratifying conventions, 1788–9, formulated in the aggregate some two hundred amendments in the nature of provisions in a Bill of Rights. These, reduced to twelve, were presented by Madison (May 25, 1789) in the House of Representatives and were duly submitted to the States for ratification. Ten were ratified (1790).

426 Reynolds v. United States, 98 U. S., 145 (1878).

427 Davis v. Beason, 133 U. S., 333.

428 Cooley, Principles of Constitutional Law, 3d Edition, 226. As to “Readings from the Bible” in public schools, see Pfeiffer v. Board of Education, 77 N. W. Reporter, 250 (1898); State ex rel. Weiss v. District Board, 76 Wisconsin, 177 (1890).

429 People v. Ruggles, 8 Johns (N. Y.), 290. The exemption from taxation of property belonging to religious bodies (corporations) is not because of any fundamental right of such bodies to exemption, but because of the will of the legislature. It is a matter of policy.

430 The winning of these and other fundamental rights is largely the subject of English constitutional history.

431 So expressed in many State constitutions, as Pennsylvania, 1873, i., 7.

432 A right fully established at the trial of the Seven Bishops, 1688.

433 United States v. Cruikshank, 92 U. S., 542 (1875).

434 West v. Cabell, 153 U. S., 78; Weeks v. U. S., 232 U. S., 383; Ex parte Milligan, 4 Wallace, 2; U. S. v. Louisville & Nashville R.R. Co., 236 U. S., 318; U. S. v. Boyd, 116 U. S., 616 (the leading case), and Cotting v. Kansas City Stock Yards Co., 183 U. S., 79 (1901).

435 Paul v. Virginia, 8 Wallace, 168 (1808); Blake v. McClung, 172 U. S., 239 (1898); Lockner v. New York, 198 U. S., 45 (1905).

436 The rights of the person, and his or her rights of property are the essential subject of the Fourth, Fifth, Sixth, Seventh, and Eighth Amendments. Similar provisions are included in the Bills of Rights in the State constitutions.

437 Corfield v. Coryell, 4 Washington C. C., 371; Slaughter House Cases 16 Wallace, 36.

438 This act of sovereignty is so rare as almost to be unknown. In America the act takes the form of an amendment to the Constitution.

439 The forty-eight States have had, in the aggregate, some one hundred and twenty-five constitutions, and to these have been added some three hundred amendments (1776–1917). The federal Constitution has been amended seventeen times (1787–1913).

440 Downes v. Bidwell, 182 U. S., 244 (1901).

441 Pfeiffer v. Board of Education of the City of Detroit, 77 N. W. Rep., 250 (1898).

442 Reynolds v. United States, 89 U. S., 145 (1878).

443 Boyd v. United States, 116 U. S., 616 (1886). (Important historical data given in this case.)

444 Robertson v. Baldwin, 165 U. S., 275 (1897).

445 Cooley, Constitutional Limitations, 353; Ex parte Wall, 107 U. S., 265 (1883). Murray’s Lessee v. The Hoboken Land and Improvement Company, 18 Howard, 272 (1855), considered the leading case.

446 Hurtado v. California, 110 U. S., 516 (1884).

447 Yick Wo v. Hopkins (San Francisco Laundry Cases), 118 U. S., 356 (1886).

448 Pembina Mining Company v. Pennsylvania, 125 U. S., 181 (1888). Barbier v. Connolly, 113 U. S., 27 (1885). Holden v. Hardy, 169 U. S., 366 (1898). But an act making it a criminal offense to employ a female in any clothing factory more than forty-eight hours in any one week violates the Fourteenth Amendment as violating the right of contract and being class legislation: Ritchie v. State, 155 Illinois, 98 (1895).

449 Dent v. West Virginia, 129 U. S., 114 (1889). And cases cited.

450 Barbier v. Connolly, supra. Mugler v. Kansas, 123 U. S., 623 (1887). The power to regulate, that is, the jurisdiction of the police power of the State, as decided in Munn v. Illinois, 94 U. S., 113 (1876), includes the power “to provide a maximum charge for the storage and handling of grain” in a warehouse privately owned. This is settled law, but careful reading should be made of the dissenting opinions in this case: Budd v. New York, 143 U. S., 517 (1892), sustaining Munn v. Illinois, with strong dissenting opinions; Spring Valley Water Works v. Schottler, 110 U. S., 347 (1884) sustaining Munn v. Illinois, with strong dissenting opinions. The economic question here is whether the State can fix prices, wages, compensation, hours of labor, etc. In this connection examine Lockner v. New York, 198 U. S., 45 (1905), sustaining a law of New York State making it a penal offense for any employer to require and permit any employee to work for him more than sixty hours in any one week. The law was sustained as a constitutional exercise by the State of its police power; but see dissenting opinions. The per contra was “the right of the individual to liberty of person and freedom of contract.”

451 Capital Traction Company v. Hof, 174 U. S., 1 (1899). Many cases cited and the history of trial by jury given.

452 Mr. Justice Matthews in Yick Wo v. Hopkins, 118 U. S., 356 (1886).

453 Amendment XIV., July 28, 1868. It will be noticed here that the word “territory” is not used.

454 Slaughter House Cases, 16 Wallace, 36 (1872).

455 Amendment XIV.

456 Art. iv., 2: 1.

457 See p. 150.

458 Canfield v. Coryell, 4 Washington, C. C., 371, 380; Paul v. Virginia, 8 Wallace, 180, and see pp. 191–211 of the present volume.

459 Slaughter House Cases, supra.

460 Crandall v. Nevada, 6 Wallace, 36 (1867).

461 Slaughter House Cases, supra. (Some additional rights are secured citizens of the United States by Amendment XIV., §2; and by Amendments XIII. and XV.)

462 Minor v. Happersett, 21 Wallace, 162 (1874).

463 Art. iv., 4.

464 Minor v. Happersett, supra. (But see Ex parte Yarbrough, 110 U. S., 651.)

465 These qualifications, in the aggregate, have been of age, sex, residence, religion, property, race, and tax-paying. See the provisions in the State constitutions in Charters and Constitutions, 7 vols., U. S. Government Printing Office, 1909; and a detailed account of these early qualifications (1776–1850) in the author’s Constitutional History of the American People, i., ch. iii.

466 Art. i., 2: 1; Amendment XVII.

467 Ex parte Yarbrough, 110 U. S., 651, 653; Wiley v. Sinkler, 179 U. S., 58 (1900).

468 United States v. Cruikshank, 92 U. S., 542 (1875).

469 Idem.

470 Civil Rights Cases, 109 U. S., 3 (1883).

471 Idem.

472 Ex parte, Siebold, 100 U. S., 371 (1879).

473 Strauder v. West Virginia, 100 U. S., 303 (1879).

474 Civil Rights Cases, 109 U. S., 3 (1883).

475 14 Statutes at Large, 27, Ch. 31; Enforcement Act, May 31, 1870, 16 Statutes at Large, 140, Ch. 114.

476 Civil Rights Cases, supra.

477 That is, violating Amendments VI. and XIV.

478 Hurtado v. California, 110 U. S., 516 (1884).

479 “The trial by jury in civil cases guaranteed by the Seventh Amendment (Walker v. Sauvinet, 92 U. S., 90) and the right to bear arms guaranteed by the Second Amendment (Presser v. Illinois, 116 U. S., 252) have been distinctly held not to be privileges and immunities of citizens of the United States against abridgment by the States, and in effect the same decision was made in respect of the guarantee against prosecution, except by indictment of a grand jury in the Fifth Amendment (Hurtado v. California, 110 U. S., 516) and with respect to the right to be confronted with witnesses, contained in the Sixth Amendment (West v. Louisiana, 194 U. S., 258). In Maxwell v. Dow, 176 U. S., 606, when the plaintiff in error had been convicted in a State court of a felony upon an information, and by a jury of eight persons, it was held that the indictment made indispensable by the Fifth Amendment, and the trial by jury guaranteed by the Sixth Amendment, were not privileges and immunities of citizens of the United States, as those words were used in the Fourteenth Amendment.... We conclude, therefore, that the exemption from compulsory self-incrimination (‘see Amendment V.’) is not a privilege or immunity of national citizenship guaranteed by this clause (‘the first clause’) of the Fourteenth Amendment against abridgment by the States.” Twining v. State of New Jersey, 211 U. S., 78 (1908).

480 United States v. Wong Kim Ark, 169 U. S., 649 (1898).

481 Art. i., 8: 4.

482 United States v. Villato, 2 Dallas, 373; Nishimura Ekin v. U. S., 142 U. S., 651; Luria v. U. S., 231 U. S., 9.

483 Ex parte Griffiths, 118 Indiana, 83 (1889), citing many cases, (inter alia) Hayburn’s Case, 2 Dallas, 409, n.; United States v. Ferrera, 13 Howard, 40, n.; United States ex rel. v. Duell, 172 U. S., 576 (1898), also to be consulted.

484 United States v. Rodgers, 150 U. S., 249 (1893).

485 Guinn and Beal v. United States, 238 U. S., 347 (1915).

486 Idem.

487 Idem. and citing Ex parte Yarbrough 110 U. S., 651 (already considered in the present Chapter) and Neal v. Delaware, 103 U. S., 370. The decisions of the Supreme Court do not conflict with a State constitution that requires, as a qualification for voting, a literacy test, or a religious test, or a property test, or indeed any test which is not a discrimination on account of race color or previous condition of servitude.

488 Calder v. Bull, 3 Dallas, 386 (1798); Kring v. Missouri, 107 U. S., 221 (1882); Thompson v. Utah, 170 U. S., 343 (1898). All the State constitutions forbid ex post facto laws.

The right secured to the citizen by the constitutional inhibition of ex post facto legislation forms part of his, or her, privileges and immunities; for though the inhibition cannot be said to be derived from the common law,—and may be said to be essentially statutory, it has become recognized as a fundamental right and of rank with any other fundamental right.

489 Hollinger v. Davis, 146 U. S., 314 (1892).

490 Idem.

491 Boyd v. United States, 116 U. S., 616 (1886). The right covers “persons, houses, papers, and effects.” Art. iv.

492 Harris v. People, 128 Illinois, 585 (1889).

493 Art. v., Act of February 11, 1893, Statutes at Large, 443; Brown v. Walker, 161 U. S., 591 (1896).

494 Amendment VI. Mattox v. United States, 156 U. S., 237 (1895).

495 Idem.

496 In the original the clauses are not numbered, nor is there any title to the document. It begins, “We the People.”

497 See Amendments XIII., XIV., XV., XVI.

498 See Amendment XVII.

499 See Amendment XII.

500 See Amendment XI.

501 See Amendments XIII., XIV., XV.

502 The word, “the,” being interlined between the seventh and eighth Lines of the first Page, The Word “Thirty” being partly written on an Erazure in the fifteenth Line of the first Page, The Words “is tried” being interlined between the thirty-second and thirty-third Lines of the first Page and the Word “the” being interlined between the forty-third and forty-fourth Lines of the second Page.

503 New Jersey withdrew her consent to the ratification on March 27, 1868.

504 Oregon withdrew her consent to the ratification October 15, 1868.

505 Ohio withdrew her consent to the ratification in January, 1868.

506 North Carolina, South Carolina, Georgia, and Virginia had previously rejected the amendment.

507 New York withdrew her consent to the ratification January 5, 1870.

508 Ohio had previously rejected the amendment May 4, 1869.

509 New Jersey had previously rejected the amendment.