technical sense which it possesses in the ecclesiasticalpolitical history of England, but nevertheless it would be unconstitutional if for example for example faith in God should be declared necessary in order to become a federal officer. The United States are not legally a Christian state; they are not even a theistic state; but just as little are they a pagan state. They are simply a state. The religious convictions of the people and the churches as communities of believers do not exist, so far as the United States are concerned, i. e., all these things lie without their sphere of action. The federal government has only the powers granted by the constitution, and the latter mentioned religion only because it appeared safer to express explicitly what complete silence would have implied. The second provision also contains but a single prohibition. The first amendment forbids congress to enact any law "respecting an establishment of religion or prohibiting the free exercise thereof."2 "An establishment 1 The attempt has been repeatedly made to bring into the constitution in some form or other a recognition of God, but the people have never taken kindly to the thought, perhaps less because they are quite conscious of the objections to it on principle, and regard them as decisive, than because they consider the matter simply unneces sary. 66 A treaty concluded with the Bey of Tripoli November 4, 1796, says: 'The government of the United States is not in any sense founded on the Christian religion." U. S. Statutes at Large, VIII., 155. 2 The Mormons, on account of this amendment, declare that the laws against their polygamy are unconstitutional. And it has seemed doubtful to many non-Mormons whether congress was authorized to assail this "remnant of barbarism" with penal laws. The question is certainly not wholly without difficulty, for it is well to note that the free "exercise" of a religion cannot be prohibited. But the demands of sound common sense have won the victory over scruples of constitutional law. A state cannot be in duty bound to look with folded arms on the subversion of its fundamental principles of morality because the attack is cloaked under the form of practicing of religion" is also a technical expression borrowed from England, but it must not be understood in its narrowest. technical sense. Congress is not only prohibited from making any religion whatever a state religion or any church whatever a state church, but it cannot make any laws favoring one religion or church more than any other. As far as the federal constitution is concerned, not only are all religions and churches tolerated, but they have all perfectly equal rights, inasmuch as congress has no powers whatever in relation to any of them or all of them. On the other hand, neither of the two constitutional provisions as to religion imposes any obligation or limitation upon the states. the states. But the constitutions of the states themselves, without exception, contain provisions substantially the same as those of the federal constitution. This is not, however, because the latter binds them to this. Actually and legally the complete religious liberty a religious dogma. But although, undoubtedly, no such insane and suicidal obligation can be deduced from this constitutional provision, it must, nevertheless, be admitted that the limits to which congress may proceed, in its application, cannot be defined with absolute certainty. If its application has once become a necessity, only the sound sense of the people can prevent the transgression of the correct line of demarcation on any other occasion. In the United States public opinion offers sufficient security, however, against any such transgression. From a political stand-point it is a more important fact that so far no effective means have been found for suppressing polygamy by legislation. The final reason why all penal laws have remained substantially ineffective is perhaps the unanimity of passive resistance which the Mormons oppose to them. Neither accusers nor witnesses can be found, and there is therefore no opportunity to apply the law. The latest penal act (that of March 22, 1882; the socalled Edmunds bill) punishes polygamy in the territories and in other places under the exclusive jurisdiction of congress with a fine not exceeding $500 and imprisonment for not more than five years, and also deprives a polygamist of the franchise and of the right of occupying any public office. and separation of church and state exist throughout the Union, but not as an effect of the constitution. The latter guaranties this only so far as the federal government is concerned. The separation of church and state is manifestly not to be understood as implying that the churches can do and not do what they please. As corporations, they are subject like other corporations to the legislative power of the states, especially as to their property. They are also subject to the police power, and they cannot any more than individuals escape from the laws of the state prohibiting and punishing violations of public morals by appealing to their religious convictions.' $75. FREEDOM OF SPEECH AND OF THE PRESS. The general observations in the last paragraph apply here also. Freedom of speech and of the press are guarantied by the constitution, only so far as the federal government is concerned; but they are also guarantied by all the state constitutions. It is to be observed that congress is 1 On the ground that the Christian religion was always acknowledged by the common law, and further, that it is the prevailing religion of the United States, the power to punish "blasphemies" has been claimed. The relations of church and state will be more fully discussed in the chapter on the public law of the several states. 2 The provisions in point are collected by Cooley, Constitutional Limitations, 414-417. Hammond, I., 23, § 67, says, nevertheless, in reference to United States vs. Hall, 13 Int. Rev. Record, 182: “The right of freedom of speech, and the right peaceably to assemble and other rights enumerated in the first eight amendments to the constitution, are thereby protected only against the legislation of congress and not against the legislation of the states. These rights, therefore, were not secured to the people of the United States until the fourteenth amendment to the constitution, because till then they might be impaired by state legislation; but now they are not only secured from congressional interference, but by the amendment, from state interference also." He can refer here only to the clause in the first section of the fourteenth amendment, which prohibits the states from making or enforcing "any law which shall abridge the privileges or forbidden to "abridge" the freedom of speech or of the press. They were therefore recognized as existing rights. Hence it has been argued that the correct interpretation. of the words must be found in the common law. In the opinion of the most prominent English jurists, however, the common-law freedom of the press is in substance merely freedom from a censorship, while in the United States the idea has always been given in fact and in law a far wider range. Cooley defines it as meaning that everything can be published which does not injure public morals or private reputation in a way punishable according to the principles of the common law. There is no responsibility for publication only in those cases which for various. reasons are recognized as "privileged." Even proof of the truth of the alleged libel does not always assure immunity from punishment. In civil cases it is always sufficient; but if the complaint is a criminal one, the motive of publication must have been justifiable. In cases of the latter kind, the jury in many states decides not only questions of fact but also questions of law. In some states this principle extends to all actions for libel and slander. Juries always decide the questions of fact. That attacks against the government ought not to be punished as libels has been generally recognized, since the "sedition law," passed during the presidency of John Adams, was condemned by public opinion with great decision and bitterness as unconstitutional. Even attacks upon the form of the state cannot be punishable as long immunities of citizens of the United States." In my opinion this clause cannot be given so comprehensive an interpretation. Compare § 82. See, also, U. S. vs. Cruikshank, 92 U. S., 542. 1 See Cooley, Constitutional Limitations, 425, 426; and Principles, 275 et seq. A distinction must be drawn between cases of conditional and unconditional privilege. as the change is sought in a constitutional way. In case of plans for the violent subversion of the government or the state, seditious publications can, however, be produced before the criminal judge as part of the res gestœ. $76. THE RIGHT TO ASSEMBLE AND TO PETITION. These rights are likewise guarantied in all the state constitutions. In them, as well as in the federal constitution, the former right is subject only to the condition that the people assemble "peaceably." Public authority can, therefore, interfere with a public meeting under no circumstances, unless a violation of law has become an accomplished fact. This right has never been in danger in the United States. The right of petition, on the contrary, during many years, occasioned the most heated contests in congress. This aroused much of the opposition of the free states to the steady, reckless and domineering advance of the slave-holding interests. 66 § 77. THE RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS shall not be infringed" (second amendment); because a well-regulated militia is necessary to the security of a free state. It has therefore been argued that the constitutional provision refers only to arms necessary or suitable for the equipment of militia; although it must not be inferred from this that the right is restricted to those citizens who belong to the militia. As to whether or no the bearing of other arms can be forbidden, judicial decisions are far apart. It is, however, generally admitted that the secret carrying of arms can be prohibited. $78. SLAVERY is prohibited throughout the entire domain of the Union by the thirteenth amendment. So, too, is "involuntary servitude," except as a punishment for crime, after due conviction.' 1I pass over all other provisions relating to slavery, as they have now only an historic interest. |
