Wednesday, May 29, 2013

"All these and some other provisions are in the nature of a bill of rights, sanctioned by the Constitution, and are, by necessary implication, so many restrictions on all power, wherever lodged"

§ 593. "No State shall . . . pass any . . . law impairing the obligation of contracts." Mr. Madison says of such laws, with others in the same connection, they " are contrary to the first principles of the social compact, and to every principle of sound legislation."1 The prohibition is taken substantially from the Ordinance of 1787, as drawn by Mr. Dane, where the words are "interfere with or affect private contracts." The change is significant. "Interfere with or affect" might extend to any act that should touch or relate to this contract. But to "im
1 Federalist, No. 44.
pair the obligation," means only to weaken the force or efficacy of the contract. Leaving out the qualifying word "private," makes the prohibition apply to all contracts. Thus the Supreme Court say,1 " The words are general, and are applicable to contracts of every description." They have been judicially applied to contracts between individuals, between States, and between States and individuals; to State grants of every kind, — of land, easements, privileges, and franchises; and for all sorts of purposes and uses, whether mercantile, agricultural, manufacturing, educational, or eleemosynary. In fact, to almost every conceivable contract in the power of the State or people to make, except their own Constitutions.

§ 594. To prevent the violation of these, to the detriment of individual rights, by the State itself, or by any department of its government, the courts of the United States have never been called upon to interfere, under the authority of this restriction. Civil rights of great importance and value are acquired, vested, and held under these constitutions, and are afterwards taken away, lost, or impaired by adverse unconstitutional State action, under the forms of law, without restraint or redress. Why an appeal should not be made to the supreme judicial power of the nation for redress under this provision, is not readily perceived. That State constitutions are contracts in their nature, will hardly be denied. They are usually so called on their nice. Chief Justice Jay said,1 "Every State constitution is a compact, made by and between the citizens to govern themselves in a certain manner." The constitution of Massachusetts asserts that "the body politic ... is a social contact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws." They therefore "ordain and establish" . . . the constitution, which they call "an original, explicit, and solemn compact with each other." All the State constitutions purport expressly to be founded on the consent, agreement, or compact of the people, and are thus made contracts in form as well as in substance. If they are contracts at all, they must be contracts of some description; and if the prohibition of our Constitution is "applicable to contracts of every description" of what description must those contracts be, to which it does not apply?

i 6 Cranch's Rep., 137.

§ 595. "Whenever a law is in its own nature a contract, and absolute rights have vested under it, a repeal of that law cannot divest those rights, or annihilate or impair the title so acquired." A constitution is a law, and if an authorized repeal of it by the whole people cannot impair rights held under it, much less can an unauthorized violation of it by any department of its government. It is difficult to see why a private vested right, when attempted to be impaired in this manner, should not be protected under the authority of this prohibition by the general government, whose duty it is to execute the Constitution. It is no answer to say, even if it could be proved, that such a result was not in contemplation when the Constitution was formed. "Although a rare or particular case may not of itself be of sufficient magnitude to induce the establishment of a constitutional rule, yet it must be governed by that rule when established, unless some plain and strong reason for excluding it can be given." A constitutional bill of rights is a grant, recognition, or assurance to individuals, of the rights therein contained; and, like any other grant, is a contract executed, and an extinguishment of the right of the grantor, and implies a contract not to re-assert that right.1 The Constitution says that a State shall not impair the obligation of contracts, and the Supreme Court have authority to enforce the prohibition.

1 2 Dallas's Rep., 419.

§ 596. "No State shall . . . pass any bill of attainder, ex post facto law, ... or grant any title of nobility." These are repetitions of what had been more generally prohibited before, and have already been sufficiently remarked upon. "No State shall . . . lay any imposts or duties on imports or exports;" or "lay any duty of tonnage;" or "keep troops or ships of war in time of peace." It is added in regard to these, and some others, "without the consent of Congress ;" but this neither increases nor diminishes the force of the restriction; for whatever Congress may lawfully do directly, on any of these subjects, they may doubtless do indirectly, that is, consent to their being done by the State legislatures, if they so choose.

1 See 3 Story's Com., 258; 6 Cranoh's Rep., 135; 1 Kent's Com., 392.

§ 597. Besides the foregoing particular and express restrictions on the States or their governments, the Constitution contains many others, relating to matters purely internal, applying more indirectly, perhaps, and not exclusively, to the States, but still equally including them and all others subject to the Constitution. Whatever the Constitution contains is the supreme law of the land, and binds everybody that is under thfc law. This class of disabilities extends to all general inhibitions of acts in derogation of recognized rights, and all negations, or affirmations in the nature of a declaration of rights. Saying that a thing shall not be done, that is otherwise within the scope of legislative power, State or national, operates essentially a constitutional disability on all governments and people within its jurisdiction. (Am. 13 and 14, § 1.)

§ 598. Instances under this head include such subjects as the following: The privilege of members of Congress from arrest; the suspension of the writ of habeas corpus; the compensation of the President; the trial of all crimes by jury; the requirement of two witnesses for conviction of treason; attainder of treason not to work corruption of blood or forfeiture after the death of the traitor; the faith and credit to be given to public acts and records of other States; the privileges and immunities of citizenship; the extradition of fugitives from justice; the discharge of fugitives from labor; the support of republican government; the invalidity of any State law contrary to "the law of the land."

§ 599. Many subjects are similarly restricted in the constitutional amendments of which the following are examples: The free exercise of religion; freedom of speech; freedom of the press; the right of the people to assemble and petition the government; the right of the people to keep and bear arms; the right of the people to be secure in their persons, houses, papers, and effects; the legality of warrants upon probable cause, supported by oath, &c; indictments only by a grand jury; only once in jeopardy of life or limb, for the same offence; no one compelled to be a witness, in a criminal case, against himself, nor deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation; the right of trial by jury in suits at common law involving over twenty dollars. All these and some other provisions are in the nature of a bill of rights, sanctioned by the Constitution, and are, by necessary implication, so many restrictions on all power, wherever lodged. A few only are particularly applied to Congress; but it is not to be supposed that this was intended to be exclusive, or that the people of the United States meant to have their rights exposed to depredations from others, after protecting them against their own government. The acknowledged constitutional rights of the people must be protected by the government, not only against their own wrongdoing, but against any other agency in the land. The government has as much right to put a citizen to the rack in order to compel him "to be a witness against himself," as it has to permit a village magistrate to do the same thing, under the pretended authority of a State law. And so of every other prohibition in the catalogue.

§ 600. These are the disabilities and restrictions imposed on the States, by the terms of the Constitution. They were always in view during the early discussions of the relative rights of State and nation, when it was well understood and recognized, that the Constitution left the States with all the legal rights they then had, except those that were altered by that instrument. It was known that no new powers of government were conferred on the States, and that all its legislative powers were vested in Congress. It was also perfectly and equally well known to all concerned, that the whole object of the American people, in ordaining and establishing the Constitution, was to constitute a firm national government, adequate to all the exigencies of a government for the United States, "in order to form a more perfect Union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty" to all the people of the United States and their posterity. All this was true, well understood, and plainly and permanently written on parchment. But the future was unseen, and necessarily left out of the account. It could not have been foreseen, that a system of false doctrine and antagonistic practice, leading to, and terminating in, treason, rebellion, and war, would be adopted by a portion of the subordinate States, the result of which might be the total annihilation, or any thing short of it, of all those States.

§ 601. The avowed purposes of the people of the United States, for which the Constitution was established, they had made it the duty of their government to accomplish, by all the means placed at their disposal. These means were, the making and executing of "all laws necessary and proper" for that end. Whatever laws may be properly made by one department, must be lawfully executed by the other departments; and whatsoever the government, or any department or officer thereof, may lawfully do or command for any of those purposes, no man may lawfully undo or counteract. This constitutes the sweeping and all-pervading restriction and disability of every citizen and subject within the Union, the States inclusive. This is the supremacy of the Constitution, and, with the laws and treaties of the United States, forms the paramount " law of the land," binding all officers and judges, States, corporations, and people, "any thing in the constitution or laws of any State to the contrary notwithstanding."


- Judge Timothy Farrar, [MANUAL OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. By TIMOTHY FARRAR, LL.D. Veritatem--"expellas furca, tamen usque recurret."--Horace. "Litera scripts manet." THIRD EDITION REVISED. With An Appendix. BOSTON: LITTLE, BROWN, AND COMPANY. 1872. Pg. 508-516] (The Hon. Timothy Farrar of New Ipswich, N.H. was a judge of the Court of Common Pleas, and vice president and director of the New England Historical and Genealogical Society. He also wrote the Review of the Dred Scott Decision)

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