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What can the small States do ?
Rhode Island or Delaware can amend the Constitution of the United States as parts of the three-fourths, but the United States have no power to amend the Constitutions of these small States of the Union. The smallest State can vote to unseat a President, but the United States cannot unseat the Governor of the smallest of the States. The reason is that the States are principals.
What of the Bill of Rights?
The first ten “ Amendments," as they are called, constitute a Bill of Rights, and were passed by the new Congress begun and held at the city of New York on Wednesday, the fourth day of March, 1789. They were ratified between the constitutional number of States, 1791.
The preamble to the joint resolution of Congress says: “ The conventions of a number of States having, at the time of the adoption of the Constitution, expressed a desire, in order to prevent misconstruction and abuse of its powers, that further declaratory and restrictive clauses should be added, and as extending the ground of public confidence in the government will best insure the beneficent ends of its institution : Resolved," (here follows the joint resolution proposing the “ Amendments” to the legislatures of the several States). The articles so ratified have special application to the reserved or ungranted powers of the States. The Supreme Court of the United States have so decided.
The Eleventh Amendment was proposed at the first session of the third Congress, and ratified between the States in 1798. The Twelfth Amendment was proposed at the eighth Congress, and ratified in 1804.
What are declaratory, and what are restrictive ?
Article 1.—“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This, while restricting Congress, is declaratory of the conclusion of Article VI., unamended Constitution, that "no religious test shall ever be required as a qualification to any office or public trust under the United States."
Congress is also prohibited from “abridging the freedom of speech or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
What of the Louisiana Lottery decision ?
In the habeas corpus cases of George W. Dupre, of the Daily States of New Orleans, and John L. Rapier, of the Daily Register of Mobile, the Supreme Court of the United States gave to Congress unlimited control over the mail within the limits of the several States. The appellants were charged with sending lottery matter through the mail in violation of an act of Congress. The opinion of the court was based on a previous deliverance of that tribunal, known as Jackson, ex parte, a case where the prohibition of the mailing and transmission of lottery matter by the law was questioned. The prohibitive provisions were as to fraudulent lotteries, but the amended statute includes all lotteries. In the former case it was argued that to exclude from the mail newspapers containing printed matter relating to fraudulent lotteries was an abridgment of the constitutional right of the press, and this argument was used in the cases of Dupre and Rapier on the far more solid ground that the Louisiana Lottery was a chartered institution of a sovereign State, over whose local legislation Congress has no power to legislate. But the court decided that the amended act gives the United States authority to regulate transportation of letters and newspapers in each State, which carries with it punishment for violation, and which must be conceded to be an enormous step toward centralization.
infringe the freedom of speech and of the press. The lottery was a purely local institution. It was not opposed to “ the general welfare.” The United States are not the custodians of the morals of the people of the States. The States are such custodians. The mail belongs to the States. The United States are their agent and mail-carrier.
What about church and State ? Massachusetts gave us the first amendment. It is worthy of the young Liberty that was rocked in the cradle of old Faneuil Hall. Entire separation of State and church is meant by it. The principals or the States reserved to themselves the acknowledgment of a Supreme Being, and so omitted it in the charter of the agent.
Mark the words of prohibition : Congress shall make no law respecting what ? “An establishment of religion, or prohibiting the free exercise · thereof." The amendment does not say “a relig. ion,” but any religion, whether Aryan, Christian, Mohammedan, or Pagan. The United States must have nothing to do with the religious consciences of men. In no case must they prohibit the free exercise of that conscience.
Our treaty with Tripoli explains itself. This treaty was concluded November 4, 1796, was rati
fied by the Senate June 7, 1797, and proclaimed June 10, 1797.
Article XI, is as follows: “ As the government of the United States is not in any sense founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity of Mussulmans; and as the said States have never entered into any war or act of hostility against the Mohammedan nation, it is declared by the parties that no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."
This treaty bears the signature of George Washington and his Secretary of State; Timothy Pickering, and as this was only twenty-one years after the Declaration of Independence, with most of the great actors in the founding of the government still living, and with whom this treaty found no protest, it may be accepted, whether right or wrong, as an expression of what its founders regarded as the character of the government of the United States.
That which the States prohibited to the United States they meant to be applicable to themselves. A State is debarred from using its official authority to sustain the worship of any sect. All it can do is to protect all sects from molestation or vio