Saturday, May 18, 2013

"expressly declared to be his right— the right to bear arms; and this right, says the Constitution, shall not be infringed."

Rights of Citizens of the United States.




FEBRUARY 6, 1872.


42d Cong....2d Sess.
"The Senate having resumed the consideration of the bill (It. R. No. 380) for the removal of political disabilities, and Mr. Sumner having moved his supplementary civil rights bill as an amendment, and Mr. "Carpenter having moved a substitute for said amendment—[14th Amendment]

Mr. THURMAN said: Mr. President: It was not my purpose to say anything at this stage, of the debate; but, on reflection, I think 1 may as well submit some views that I entertain, now, as to do so at a later period.

"My colleague has touched a very important, nay a vital question, one that I humbly conceive has not been carefully considered; and that question is, what are the rights, privileges, and immunities of a citizen of the United States, and where is the source or fountain of these rights, privileges, and immunities. My colleague says that these are not rights given by the Constitution of the United States; and, in a certain sense, that statement is correct; not, however, universally correct, because there is one right of an American citizen that may be said to be given by the Constitution, since it grows out of the fact that there is such a Constitution and that there is such a thing as a citizen of the United States. The Government of the United States was created and exists only by reason of the Constitution, and the Constitution, in express terms, recognizes the fact that there is such a thing as citizenship of the United States, because it provides that no one shall be a Senator in Congress who has not been nine years a citizen of the United States; and it also provides that the Congress may pass laws for the naturalization of foreigners. What is a naturalization law? It is a law to make the person naturalized a citizen of the country which enacts the law. So that the Constitution itself recognizes the fact that there is such a thing as a citizen of the United States as distinguished from a citizen of one of the States.

"Now, without any express provision in the Constitution upon the subject, it necessarily follows that as the Government is created by the Constitution and exists only by virtue or it, and as there is such a thing as a citizen of the United States, one right attaches to every such citizen, and that is the right to demand the protection of his Government against any foreign Power that maltreats him. Wherever upon the face of the globe an American citizen shall peaceably go, he is under the protection of the flag of the United States. He has a right to demand from his Government that protection which any man in the peaceable exercise of a right, out of his own country, is entitled to enjoy. So that an injury to him is an injury to his Government, for which his Government may demand redress. That is one of the rights of an American citizen derived from the fact that the Constitution creates the Government and that he is a citizen of that Government, and it may therefore be said to be given by the Constitution.

"But when my colleague goes further and says that the rights of American citizens are not defined in the Constitution, I submit that he is somewhat mistaken. It may be admitted that they are not affirmatively and positively defined, but that does not touch the question. What is equivalent to an affirmative and positive definition is that there is absolute and positive recognition of these rights in the Constitution, and that is quite as good as if they had been specifically defined. They do not find their source, except historically, away back in the common law of England. If they rested on that they would have a poor foundation to rest upon. Does my colleague mean to say that an American citizen has no rights but such as are or have been enjoyed by an English subject under the common law of England? He certainly will not contend for that. To illustrate by this very question of jurors, does he not know that four centuries or more after Magna Charta no man could sit in a jury-box in England to try a cause between Englishmen, unless he could take the test-oath and the oath to support the act of conformity? Does he not know that that excluded every man—Roman Catholic, dissenter, Jew, or unbeliever—who was not a member of the established church? Does he not know that at a much later period no Roman Catholic could sit in a jury-box in England, and that this disability was removed only at a comparatively recent date? Does he not know that until very recently no man could sit on a jury in England unless he were a freeholder or paid an annual rent to a certain amount?

"Then, in regard to schools: what institution of learning is it upon which England prides herself? Oxford—Oxford, which more than four centuries ago had two thousand students in her halls—Oxford, that goes back far into the Middle Ages, the pride of England from the day of its foundation to this day. Does not my colleague know that even now nine tenths of the dissenters of England cannot be, and not one Roman Catholic can be, a graduate of Oxford? Does he not know that it is necessary to subscribe to the thirty-nine articles in order to graduate at Oxford, and that therefore no unbeliever, no Roman Catholic, perhaps no dissenter, can be a graduate of that institution?

"No, sir, it is not to the common law of England that we are to look for the definition of the rights of a citizen of the United States. We may find in it certain rights which belong to us, and which we maybe said to have inherited because they were brought by our ancestors to this country; but the true doctrine in America, in regard to the common law of England, is this: that that common law is not in force here as the common law of England, not in force by virtue of its being the common law of England, but that in so far as it is a right rule of reason, and is consistent with the Federal and State constitutions, the Federal and State laws, and the circumstances of our country, it is part of the common law, not of England, but of America. That is the true idea iu regard to our common law.

"But, sir, it was not left to any such vague source as the common law of England to define what are the rights of an American citizen. In the first place, this is to be borne in mind, that the Government of the United States is a Government of limited and delegated powers. But that is true not only of the Government of the United States; it is also true of the government of each of the States. Each government possesses only such powers as are expressly delegated to it, or such as result by necessary implication from those which are expressly conferred. This being the case, this being a Government of delegated powers, it is sufficient to negative any power asserted on the part of the Government to show that it has not been delegated; and that is just as fatal to the claim of power as if its exercise were expressly prohibited by the Constitution. When, therefore, you cannot find in the Constitution of the United States a power delegated to do a particular thing, you, the Congress, have no more right to do that thing than if it were expressly prohibited in the Constitution; and that for the reason that you have no powers but such as are delegated to you—the theory of our Government being that all power resides primarily in the people, that they are the source of all power, and that they have only delegated to their governments, Federal or State, such powers as they see fit to confide to them, and have retained all the rest.

"In the next place, coming to the provisions of the Constitution, we find what are the rights, privileges, and immunities of the people in their character of citizens of the United States We find them by looking at the prohibitions contained in the Constitution against the infringement of certain rights, privileges, and immunities which belong to the people, and which, by these prohibitions, are recognized as rights that belong to a citizen of the United States, and of which he cannot be deprived. Thus, Mr. President, in the Constitution itself we find what is equivalent to a definition of these rights, not simply in the amendments, but in the original Constitution also. For instance, look at section nine of the first article of the Constitution:

""Tho privilege of the writ of habeas corpus shall not bo suspended, unless when in cases of rebellion or invasion the public safety may require it."

"That prohibits the Government from depriving a citizen of the United States of the privilege of that writ except in the specified cases. The right to the writ becomes thereby a right of an American citizen, guaranteed to him by, the Constitution of the United States, recognized therein as his right, and secured to him by that fundamental law of our Government. Then proceed to the next clause of that section:

""No bill of attainder or export facto law shall be passed."

"Here you have secured to the citizen immunity against any bill of attainder, immunity, against any ex post facto law. It thus becomes his right to enjoy that immunity. Again:

""No capitation or other direct tax shall be laid unless in proportion to the census or enumeration herein before directed to be taken."

"Here is secured to the citizen a right to be exempt from unequal taxation. Next:

""No tax or duty shall be laid on articles exported from any State."

"Here you secure to the citizen of the United States a right to take property from one State to another without any tax or duty being laid upon it.

"Again, sir:

""No preference shall be given, by any regulation of commerce or revenue, to the ports of one State over those of another; nor shall vessels bound to or from one State be obliged to enter, clear, or pay duties in another."

"Here, again, the Constitution secures to citizens of the United States certain rights, rights of trade and of commerce; and it is no answer to say that these rights, and some others of which I have spoken or shall speak, are secured to others as well as to citizens; that they are secured to a mere denizen not yet naturalized as much as they are secured to a citizen, and that one of the reasons for some of them was to protect each State from invidious or oppressive laws by another. That is no answer at all, for although these rights maybe secured to every person who is a denizen of this country, whether a citizen or not, yet it is sufficient that, being secured to all, they are necessarily rights of the citizen.

"But, sir, our fathers were apprehensive that the original Constitution did not sufficiently recognize the rights of citizens; and hence, although they ratified it when it was proposed, almost simultaneously with their ratification, indeed I may say simultaneously with it, they demanded a more full and explicit recognition of those rights, and the first eight articles of amendment to the Constitution relate wholly to their recognition and protection. Let us see. Article one of the amendments provides:

""Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof."

"Rights of CitizensMr. Thurman.
"42d Cong 2d Sess.

"Here is a great and most valuable right secured to the citizens of the United States. It protects them against any establishment of religion by act of Congress, and it secures to every man, woman, and child in the country the right to the free exercise of religion; and it is secured by the Constitution. Furthermore: "Or abridge the freedom of speech or of the press." Here are great rights secured to the people. Freedom of the press and freedom of speech are made rights of the citizen which Congress cannot abridge. Again, sir:

""Or the right of the people peaceably to assemble and to petition the Government for a redress of grievances."

"Here is another great right recognized and secured. Again:

""article II.

""A well-regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed."

"Here is another right of a citizen of the United States, expressly declared to be his right— the right to bear arms; and this right, says the Constitution, shall not be infringed. "

""article III.

""No soldier shall, in time of peace be quartered in any house without the consent of the owner, nor in time of war but in a manner to be proscribed by law."

"Here is another right of the citizen recognized, a right to be wholly exempt from having soldiers quartered upon him in time of peace, and also in time of war except in such manner as may be provided by law. 1 hen in article four there is nothing but rights:

""The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

"What a grand group of rights are these! Then comes article five:

""No person shall be hold to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in oases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danircr; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without duo process of law; nor shall private property be taken for public use, without just compensation."

"Here are a whole class of rights, among the most important belonging to the citizen, recognized, defined, and protected by the Constitution. Then comes article six:

""In all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense."

"Here is another great class of rights recognized, defined, and secured by the Constitution. Then comes article seven, which gives the right of jury trial in all common-law cases where the amount in controversy shall exceed twenty dollars. Then article eight, which provides that "excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted." These articles all recognize the rights of citizens of the United States, and, as I have repeatedly said, their recognition is equal to any definition."

Which of course, yet again, provides total vindication of Justice Hugo Lafayette Black's dissenting opinion:

    "...In addition to the original rights secured to him in the first article of amendments, [Fourteenth Amendment] he had secured the free exercise of his religious belief, and freedom of speech and the press. Then he had secured to him the right to keep and bear arms in his defense. Then, after that, his home was secured in time of peace from the presence of a soldier; and,still further, sir, his house, his papers, and his effects were protected against unreasonable seizure...."

    "'Though originally the first ten Amendments were adopted as limitations on Federal power, yet in so far as they secure and recognize fundamental rights-common law rights-of the man, they make them privileges and immunities of the man as citizen of the United States, and cannot now be abridged by a State under the Fourteenth Amendment. In other words, while the ten Amendments, as limitations on power, only apply to the Federal government, and not to the States, yet in so far as they declare or recognize rights of persons, these rights are theirs, as citizens of the United States, and the Fourteenth Amendment as to such rights limits state power, as the ten Amendments had limited Federal power..."

    - Adamson v. People Of State Of California, U.S. Supreme Court, (Justice Black, Douglas and Swayne in Dissent), June 23, 1947.

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