The Essentials of American Constitutional Law

by Francis Newton Thorpe

The compulsory production of a man’s private papers to establish a criminal charge against him is within the scope of the Fourth Amendment to the Constitution, in all cases in which a search or seizure would be; because it is a material ingredient, and effects the sole object of the search and seizure. Compulsory production of papers is unwarrantable search and seizure. Such unwarrantable seizure of books and papers is compelling a person to be a witness against himself. The offense consists in the “invasion of the indefeasible right of personal security.” The manner of the invasion whether by force or by quiet entrance is not the violation; the violation of the right is the invasion of it, in whatever manner.[443]

The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as they had been formally expressed. Thus the freedom of speech and of the press (Art. i.) does not permit the publication of libels, blasphemous, or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. x., 11) is not infringed by laws prohibiting the carrying of concealed weapons; the provision that no person shall be twice put in jeopardy, (Art. v.) does not prevent a second trial, if upon the first trial the jury failed to agree, or if the verdict was set aside upon the defendant’s motion (United States v. Ball, 163 U. S., 662, 672); nor does the provision of the same article that no one shall be a witness against himself impair his obligation to testify, if a prosecution against him be barred by the lapse of time, or by statutory enactment (Brown v. Walker, 161 U. S., 591 and cases cited); nor does the provision that an accused person shall be confronted with the witnesses against him prevent the admission of dying declarations, or the depositions of witnesses who have died since the former trial.[444]

159. “The words ‘due process of law’ were undoubtedly intended to convey the same meaning as the words, ‘by the law of the land’ in Magna Charta.” This means, in American constitutional law, to use Webster’s words in the Dartmouth College case,—“the general law—a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.” Cooley states it as meaning “that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society.”[445]

This means that whatever is the actual law of the land, the regular and established practice of courts and the legal landmarks of society defines the meaning of the phrase “due process of law.” A man who by the laws of his State has had a fair trial in a court of justice, according to the modes of proceeding applicable to such a case has been tried by due process of law.[446]

It is within the police power of a State to regulate the hours during which a business, say washing and ironing, may be carried on, and the kind of building, whether or not fireproof, which may be used for such business, but discrimination against citizens or aliens effecting the elimination of certain citizens or aliens from carrying on the business, while others are permitted to carry it on under similar conditions is a violation of the Fourteenth Amendment which secures to every person the equal protection of the laws. The discrimination is none the less unconstitutional because the person discriminated against is an alien, when the treaty between the United States and the sovereignty to which the alien owes allegiance secures to the alien in the United States “the same rights, privileges, immunities, and exemptions as may be enjoyed by the citizens or subjects of the most favored nation.” For a treaty is part of the supreme law of the land.[447]

The principle here also includes another well-settled rule of American constitutional law, that while a State may exercise its police power within its own jurisdiction, imposing restrictions on foreign corporations doing business within its territory, it cannot so exercise its police power as to infringe upon interstate or foreign commerce. Thus a police regulation of a State which prevents or obstructs, directly or indirectly, a corporation within its territory, as a party that is engaged or would be engaged in commerce, conflicts with the power of Congress to regulate commerce and therefore is unconstitutional. But police regulation of the corporation as to other matters is not a violation of the Fourteenth Amendment.[448] The principle here is “to exclude everything that is arbitrary and capricious in legislation affecting the rights of the citizen.”[449]

160. The Fourteenth Amendment takes no police powers from the States that were reserved to them when the Constitution was adopted. The States may still do lawfully as they will with their own, and this means that they will exercise authority over their own jurisdiction. That Amendment “in declaring that no State” shall deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws, undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition, and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses. But neither the Amendment, broad and comprehensive as it is, nor any other Amendment was designed to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people, and to legislate so as to increase the industries of the State, develop its resources, and add to its wealth and prosperity. From the very necessities of society, legislation of a special character, having these objects in view, must often be had in certain districts, such as for draining marshes and irrigating arid plains. Special burdens are often necessary for general benefits,—for supplying water, preventing fires, lighting districts, cleaning streets, opening parks, and many other objects. Regulations for these purposes may press with more or less weight upon one than upon another, but they are designed, not to impose unequal or unnecessary restrictions upon any one, but to promote, with as little individual inconvenience as possible, the general good. Though, in many respects, necessarily special in their character, they do not furnish just ground of complaint if they operate alike upon all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited; but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated is not within the Amendment.[450]

161. The right of trial by jury, reserved as a fundamental right, is a common law right of great antiquity. As the word “jury” is used in the Constitution, and as jury trial is secured by the Seventh Amendment, its meaning must be discovered from English history and common-law practice. That history and that practice alike prove that only a court of law can have a jury, and that a body of men free from judicial control is not and never was a common-law jury; that is, according to the Seventh Amendment, a constitutional jury is a jury in a court of record, and a number of men, a so-called jury in a court of a justice of the peace, is not a jury in the sense in which that word is used in the Constitution. A court, when we consider its derivation and history, comprises the judge assisting the jury and the jury assisting the judge. The right of trial by jury means for many purposes the same as the right to due process of law.[451]

162. The fundamentals of government are a unit, like government itself, and he who rests his case on one fundamental right really rests his case on all. The principle which permeates and includes all these fundamentals—usually set forth in Bills of Rights—is thus expressed by the Supreme Court:

When we consider the nature and the theory of our institutions of government, the principles upon which they are supposed to rest, and review the history of their development, we are constrained to conclude that they do not mean to leave room for the play and action of purely personal and arbitrary power. Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of government, sovereignty itself remains with the people, by whom and for whom all government exists and acts. And the law is the definition and limitation of power. It is, indeed, quite true, that there must always be lodged somewhere, and in some person or body, the authority of final decision; and in many cases of mere administration the responsibility is purely political, no appeal lying except to the ultimate tribunal of the public judgment, exercised either in the pressure of opinion or by means of the suffrage. But the fundamental rights to life, liberty, and the pursuit of happiness, considered as individual possessions, are secured by those maxims of constitutional law which are the monuments showing the victorious progress of the race in securing to men the blessings of civilization under the reign of just and equal laws, so that, in the famous language of the Massachusetts Bill of Rights, the government of the Commonwealth “may be a government of laws and not of men.” For the very idea that one man may be compelled to hold his life, or the means of living, or any material right essential to the enjoyment of life, at the mere will of another, seems to be intolerable in any country where freedom prevails, as being the essence of slavery itself.[452]