Sunday, May 05, 2013

"...but protect and secure them against any violation by the legislatures or courts..."

(The following is an expanded version of this previous post)
Circuit Court of the United States.



Hon. HENRY BALDWIN, Associate Justice of the [U.S.] Supreme Court.
Hon. JOSEPH HOPKINSON, District Judge.

Johnson v. Tompkins and others.

. . . . Baldwin, J. charged the jury.

   The facts of this case are not complicated, nor is there much contest about those which are material to its decision; the questions of law however are of the last importance, involving the rights of property and the personal rights of the citizens of this and other states, to an extent which calls for a plain expression of our opinion, in order to have the law finally settled by the supreme court, on the interesting subjects now before us. . . .

...We will now inquire whether there was any lawful cause to arrest on any other ground.
The first section of the bill of rights in the constitution of Pennsylvania declares, “that all men have the inherent and indefeasible right of enjoying and defending life and liberty, of acquiring possessing and protecting property, that no man can be deprived of his liberty or property but by the judgment of his peers, or the law of the land.” Sect 9.
   That the right of citizens to bear arms in defence of themselves and the state, shall not be questioned. Sect. 21.
   The second section of the fourth article of the constitution of the United States, declares, “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.”
   The tenth section of the first article prohibits any state from passing any law “which impairs the obligation of a contract.”
   The second amendment provides, “that the right of the people to keep and bear arms shall not be infringed.”
   The sixth, “that no man shall be deprived of liberty or property, without due process of law.”
   In addition to these rights, Mr Johnson had one other important one, to which we invite your special attention, and a comparison of the right given and duty enjoined by the constitution of the United States....

...We shall pursue this subject no further, in its bearing on the political rights of the states composing the union--in recalling your attention to these rights, which are the subject of this controversy, we declare to you as the law of the case, that they are inherent and unalienable--so recognised by all our fundamental laws.
   The constitution of the state or union is not the source of these rights, or the others to which we have referred you, they existed in their plenitude before any constitutions, which do not create but protect and secure them against any violation by the legislatures or courts in making, expounding or administering laws.
   The nature of this case, its history, and the course of the argument, call on us to declare explicitly what is the effect of a constitutional protection or guarantee of any right, or the injunction of any duty. The twenty sixth section of the bill of rights in the constitution of Pennsylvania, is in these words; "to guard against transgressions of the high powers we have delegated we declare [we the people of Pennsylvania], that every thing in this article is excepted out of the general powers of government, and shall for ever remain inviolate." A higher power declares this constitution and the laws of the United States which shall be made in pursuance thereof, shall be the supreme laws of the land, and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding" Const. U.S. art. 6, clause 2.
   An amendment of the constitution is of still higher authority, for it has the effect of controlling and repealing the express provisions of the constitution authorizing a power to be exercised, by a declaration that it shall not be construed to give such power. 3 Dall. 382.
   We have stated to you the various provisions of the constitution of the United States and its amendments, as well as that of this state; you see their authority and obligation to be supreme over any laws or regulations which are repugnant to them, or which violate, infringe or impair any right thereby secured; the conclusions which result are too obvious to be more than stated..."

[President Andrew Jackson nominated Baldwin to the Supreme Court of the United States. The Senate confirmed the appointment on January 18, 1830. Baldwin served on the Supreme Court for fourteen years. He died on April 21, 1844, at the age of sixty-four.]

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