The Essentials of American Constitutional Law

by Francis Newton Thorpe

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. The first ten Amendments of the Constitution are its Bill of Rights, and are a limitation not only of legislative powers but also of executive powers vested in the President, and of judicial powers vested in the Supreme and inferior courts of the United States.[376]

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]

141. The line of demarcation between powers delegated and powers reserved has always been, and doubtless always will be, in dispute. The question involved is political as well as constitutional. The abolition of slavery by the Thirteenth Amendment excludes pro-slavery legislation of any kind affecting the United States or any place subject to its jurisdiction. In like manner the Fourteenth Amendment forbids Congress, or any State, to assume or pay any debt, or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave. All these limitations of legislative power are practical guides and measurements by which the judicial power,—the law courts,—can determine what the law is, whether the act of Congress conflicts with the Constitution. It is largely through these expressed limitations that the judiciary becomes a check on the legislative.[381]

142. The limitations of the powers of the States are numerous and specific. As to limitations of State power (i. e., the power of the State government, executive, legislative, judicial, administrative), within State jurisdiction, the several State constitutions alone are authoritative and final.[382] The Union is an indestructible Union of indestructible States, yet the States composing the Union are under limitations as members of that Union. Except as to the places of choosing senators, Congress may at any time prescribe the times, places, and manner of holding elections of senators and representatives.[383]

Congress has exclusive jurisdiction over the District of Columbia, and over places purchased from any State, and over federal property.[384]

But the Constitution enumerates limitations of the States, each of which eliminates sovereignty from the State and all together, with some other limitations, reduce a State to what Hamilton, in The Federalist calls “residuary sovereignty.”[385]

No State shall enter into any treaty, alliance, or confederation; grant letters of marque or reprisal; coin money; emit bills of credit; make anything but gold and silver coin a tender in payment of debts; pass any bill of attainder, ex post facto, law, or law impairing the obligation of contracts, or grant any title of nobility.[386]

These limitations are of power usually classed as sovereign. Of similar scope are the limitations, prescribed by the Constitution, of State power of taxation,—that is, of laying imposts or duties; of keeping troops or ships of war; of entering into any agreement with another State, or with a foreign power; of engaging in war, unless actually invaded, or in imminent danger of invasion, not admitting of delay. None of these powers can a State in the Union exercise without the consent of Congress.[387]