172. But he who, under State law, voluntarily waived his right of trial by jury and elected to be tried by the court and by it was adjudged guilty and was condemned to be hanged, was not deprived of any right, privilege, or immunity for his protection by the Fourteenth Amendment, but was tried and condemned in strict accordance with the forms prescribed by the constitution and laws of the State, and with special regard to the rights of accused persons under its jurisdiction.[489] A person may waive a fundamental right[490] but neither the State nor the United States can lawfully invade the indefeasible right of a person to personal security[491]; such invasion constitutes an “unwarrantable search and seizure.” The service of a lawful warrant operates practically as a waiver of right by the person searched or seized; but were a person to waive his right, say of trial by jury, such waiver would not confer power on any court or jury to try him. “Consent can never confer jurisdiction.”[492]
173. Am act of Congress that no person shall be excused from attending and testifying, or from producing books, papers, tariffs, contracts, agreements, and documents before the Interstate Commerce Commission, or in obedience to its subpœna, on the ground that he might thus be compelled to be a witness against himself and so become subject to penalty is constitutional because its additional provision immuning him from future prosecution by reason of his evidence thus given sufficiently satisfies the constitutional guarantee of protection.[493]
So too the stenographic report of testimony given in court, supported by the oath of the stenographer that it is a correct transcript of his notes and of the testimony of a deceased witness is competent evidence, is admissible, and does not conflict with the provision of the Constitution that an accused person shall have the right “to be confronted with the witnesses against him.”[494] The principle here is essentially one of sovereignty,—the court declaring: “the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused.”[495] The sovereign right of a State, or of the United States with respect to citizenship, is sufficient, in either, to effect the purposes for which either exists; but in the American dual system of government, citizenship has fundamental rights, which are guaranteed, and political privileges, which are conferred and protected.
174. Civil rights and their guarantees, both in the States and in the United States, are formulated as limitations on government,—as fundamentals reserved “and above any constitutional sanction.” These rights include those of religious liberty, personal security, security of dwellings, papers, and property, personal freedom, due process of law, jury trial, and equal protection of the laws. The line of demarcation between these fundamental rights is not easily drawn, nor even drawn with precision. These rights, being fundamental rights, exist independent of the government which the people of a State, or the people of the United States ordain and establish. That sovereignty—the people themselves—has power to alter, to modify, or even to destroy these rights, or any of them, must be admitted, but that sovereignty ever, under a republican form of government, will alter, modify, or destroy these rights, may with equal assurance be denied.
175. The political privileges of citizenship rest on a different conception of government. Political privileges—of which the most important are the right to vote and the right to be voted for, and to execute an office because of election to office—are not fundamental, that is, they are not civil rights. The State, or the United States, has the right to prescribe qualifications for an elector, or for candidacy for any office. Usually these qualifications are of age, residence, sex, and tax-paying,—the people of the United States having also declared that the right of citizens of the United States to vote shall not be denied or abridged by the United States, or by any State, on account of race, color, or previous condition of servitude. This inhibition does not make the fact of race, or color, or previous condition of servitude a fundamental civil right guaranteed by the United States under the Constitution. In no sense does the Fourteenth Amendment confuse civil and political rights. No person can vote unless he or she has complied with the requirements (qualifications) for voting, prescribed by the State in which he or she resides. No person acquires civil rights by a similar compliance. By birth or naturalization (and naturalization is a sort of legal birth by the will of the sovereign), a person possesses civil rights, but no person possesses the privilege of voting either by birth or by naturalization. The privilege of voting may be lost by removing from a polling district; by neglect to register; by neglect to pay a tax,—in brief, by failure to comply with any electoral law of the State; but no person forfeits his or her civil rights by mere neglect. Infants, minors, adults, men, women, and children possess equal civil rights. Impairment, suspension, forfeiture of civil rights is effected only by commission of crime, that is, by a voluntary act, inimical to sovereignty itself. Such an act also cuts off the privilege of voting, or of being voted for with effect of induction into office, because the person who imperils sovereignty by commission of a crime would, in all probability, imperil sovereignty by voting. The exercise of the suffrage has long continued in America, and, both in laws and in constitutions, is commonly referred to as a “right.” The tendency of privileges is to become rights. In America, however, the republican form of government exists both in the States and in the United States. Practically, civil rights and political privileges are determined by the will of the people.
Appendix
THE
CONSTITUTION
OF THE
UNITED STATES OF AMERICA
(Compared with the Original in the Department of State)
WE THE PEOPLE[496] of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.