The person, his or her papers and dwelling are exempt from unwarrantable searches, seizure, or invasion. The exemption here goes to the fundamental supremacy of the civil over the military authority. A warrantable search is lawful because the sovereign—the State or the United States—has the primary right of self-protection, safety, peace, good order,—indeed, the right to realize the essential purposes and ends of sovereignty. But the boundary between private right and public necessity (another expression for sovereignty) must be drawn with precision. The language of the Fourth Amendment is explicit.[434]
154. The first ten amendments prohibit the United States from violating the fundamental rights of persons; they are a protection against federal tyranny. The Thirteenth and Fourteenth Amendments prohibit the States from violating certain fundamental rights of persons. Any one comparing the Fifth and the Fourteenth Amendments discovers the same language as to “due process of law” and “life, liberty, and property.” The State constitutions protect persons in like manner. Thus the fundamental right prevails in both jurisdictions,—that of the State and that of the United States.
The Fifth Amendment does not exempt a person from presentment or indictment, or trial, but recognizes his fundamental right to protection by due process of law.[435]
The protection of the person is of his life, liberty, and property—his rights to either of which are fundamental. Yet his life may be taken in defense of the State, or of the United States; he may be deprived of his liberty,—civil, political, or natural,—for cause, and his property may be confiscated to the State, or to the United States, for like reason. This apparent conflict between theory and fact is in no sense a violation of the fundamental right of the person thus affected. He is entitled to his fundamental rights; so are the several States and the United States entitled to their respective fundamental rights: but they are sovereignties; the person is not, and his fundamental rights to life, liberty, and property give place to the rights of the sovereign.
155. Neither the State government nor the federal government is that sovereign, but each is an agent of a sovereign. The sovereign can do no wrong. To the extent that the individual person is identified with sovereignty, he or she can do no wrong, and his or her rights are primary as well as fundamental. For this reason the first ten amendments specify the protection and the guarantees which apply to the person as against the powers of the Government of the United States.[436]
The test whether or not there is invasion of the fundamental rights which are excepted out of the powers of government is the issue, “Is sovereignty imperiled?” As against sovereignty, the person has in the final test no rights whatever: that is no rights that are recognized and protected by constitutional law. The supreme test is, however, rarely made.
156. The fundamental rights outlined in the first ten, and in the Thirteenth and Fourteenth Amendments to the Constitution are essentially the right of the person to the protection of sovereignty against acts of the government. The nature of this protection is expressed in the Ninth and Tenth Amendments. Sovereignty does not define its rights; it defines or enumerates powers which it delegates to government. Were sovereignty to define (if it were possible to define) its rights, it would limit itself, and to that extent cease being sovereign. The fundamental rights[437] thus reserved (in addition to those already mentioned but not in any sense exhaustive) are, the right of equality before the law; of consequent equal protection of the laws; of the exercise of the police power; of education; of employment; of making contracts; of trial by jury; of being a person (not a thing) and to realize and possess the privileges and immunities thereunto pertaining.
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]