Article III. The judicial power is vested in a Court.
151. The Preamble and these three delegations of power comprise the essentials of the Constitution, lacking one other:
Article IV. The powers not delegated are reserved to the States or to the people, and the enumeration of certain rights in the Constitution shall not be construed to deny or disparage others retained by the people.[424]
The rights thus retained, that is, not delegated, are fundamental rights, are inviolate, and to guard against transgressions of the high powers delegated to government by the people are excepted out of the general powers of government; and being excepted out of the general powers, they are logically excepted out of the particular.
Thus, in final analysis, constitutional law in America is shaped and determined by interpretation of these fundamental rights. The supreme law cannot violate them. They comprise the Bills of Rights, or Declarations of Rights of the State constitutions and the first ten amendments of the federal Constitution.
152. There is no fixed order of these rights or priority among them. The Constitution, as framed originally, forbade any religious test for any federal office or trust.[425] The First Amendment forbids Congress to make any law respecting an establishment of religion, or prohibiting the free exercise thereof. The limitation is wholly on Congress. If any such exists for a State it is found in the constitution of that State. Crime cannot be protected under the claim or guise of being religion. Thus polygamy, bigamy, or conduct, ceremonies or observance criminal and offensive to the commonsense of mankind cannot be tolerated.[426] Freedom of religion cannot be made a cloak for immorality or crime.[427] The preservation of religious liberty is largely a function of the States. The essentials here are: the equality of religious establishments before the law; “exemption of all persons from compulsory support of religious worship and from compulsory attendance upon the same”[428]; freedom of conscience and speech in religious matters, and entire exemption of the person from discrimination, domination, censorship, or interference in matters of religion by the State.
But this fundamental right does not free the person from responsibility to the State for the results of his belief or conduct, in so far as either imperils the State. Thus, so-called “religious belief” or conduct which destroys or endangers peace and good order, or the life, or lives, or reputation of a person or a community cannot work exemption under the claim of religious liberty.[429]
Freedom of speech, of the press, and of assembling are ancient rights, each won after long struggle against absolutism.[430] These rights are inviolable, but the same principle applies to them as to religious freedom: he who exercises them is responsible for the abuse of the right.[431]
153. Every citizen is subject to the legislative power of the State, and abuse of a fundamental right,—as of freedom of speech or of the press in uttering a libel,—cannot exempt the party from prosecution. No man can make plea of a fundamental right as making him “above the law.” The law accords with the fundamental right.
The right to petition government for redress of grievances[432] is essentially the right of freedom of speech in a particular way. The right to keep and bear arms is essentially the right to self-protection, but this right may not be abused with impunity; it does not empower any person to take the law into his own hands, or to carry weapons.[433] Carrying concealed weapons is not an exercise of the right to bear arms, unless in the performance of a function, the execution of an office, in which case such carrying is permitted (licensed) by the State. Essentially the right to bear arms is akin to the right to revolution as set forth in the Declaration of Independence.