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September/October 2010

Discover more articles from this issue.

Fusion

Zealous watchfulness against fusion of secular and religious activities by Government itself, through any of its instruments but especially through its...

Religious Dialogues

For What Purpose? And How Reported?

Christian Versus Muslim

Part Four in a Series

A Right to Faith?

New Hampshire Gets Two-Faced Over Homeschool

What the Constitution Means to the Citizen

The mere fact that people consider themselves civilized and enlightened is no surety of respect for human rights. The Nazi minister of justice issued a...

Crucifix Conundrums

In November 2009 the Catholic Church in Italy was faced with a "Crucifix Conundrum." Catholic crucifixes adorn every room of the public school system. In...

An Empty Gesture

Salazar v. Buono: The continuing legal saga of the cross in the desert.

Justice & Religion

A Retrospective

Magazine Archive »

Published in the September/October 2010 Magazine
by George W. Maxey

The mere fact that people consider themselves civilized and enlightened is no surety of respect for human rights. The Nazi minister of justice issued a decree that "persons would be punished for acts which were not crimes when they were committed, and that a judge would have power to decide whether a defendant deserved to suffer for sins against 'the popular sense of what is right.'"

Such things could not happen here, because our Constitution is a citadel of human rights. It was adopted in 1789. Before that time, rulers had for centuries enslaved thought, shackled enter­prise, and suppressed ambition. The masses were mostly peasants of the fields, and in the name of government they had been robbed by so-called "nobles" armed with battle-ax and spear.

Of the oppressed peoples of the Old World, the most robust and self-reliant came to this new continent. All they asked was land and freedom. As they became prosperous and the government attempted to despoil them, they achieved their independence. They then organ­ized a government suitable to their sturdy, liberty-requiring character.

They made it clear to the Congress they created that its business was not to be the legislative manufacturing of economic or any other kind of straitjackets; they made it clear to the Chief Executive that he was not the master but the first servant of the state. The Constitution, like the Decalogue, includes numerous and emphatic "Thou shalt nots," and places far beyond the reach of any governmental interference certain fundamental rights essential to human life, human liberty, and the pursuit of human happiness.

The most exalted position created was that of President, and, lest its occupant might sometime be tempted to exercise ungranted powers, it was provided that, before a President enter on the execution of his office, "he shall take an oath to preserve, protect, and defend the Con­stitution of the United States." The framers of that document regarded an oath as something registered in heaven, and assumed that no man so honored and so sworn would violate it.

To safeguard individual rights, the framers of the Constitution created the Supreme Court, with authority to say, when the facts warranted, to the Pres­ident and Congress: "Your acts are void because you are attempting to do what the Constitution declares you must not do."

That all nations have recurring pe­riods of passion is a matter of history. In such periods individual freedom is trampled underfoot in republics as well as in monarchies. Never have human rights been more insecure than they were in France after the monarchy had been destroyed, "the rule of the people" proclaimed, and the tricolor of "liberty, equality, and fraternity" unfurled. In certain European countries where within two decades emperors have been de­throned and men from humble life have become the heads of state, the lives and liberties of countless individuals are with cruel injustice being daily denied.

History records that, during the many civil commotions in England, thousands of the best men and the purest patriots fell by the hand of the public execu­tioner. In the "Bloody Assizes" held in Winchester in 1685, 320 men and women were sent to their deaths by the hang­man or the headsman, and several hun­dred more were ordered to be sold into slavery in the West Indies. Lady Alice Lisle, aged seventy-one, was sentenced in the same assizes to be burned to death because she gave shelter to a noncon­formist minister and his companion who were fugitives from Monmouth's army. The charge against her was "harboring traitors." Later King James II gra­ciously consented that the old lady be beheaded instead of burned to death. Human nature acts very much alike everywhere in periods of emotional ex­citement.

Protected Only by the Constitution

In October 1864, three citizens of Indiana were arrested by order of a general of the United States Army. They were brought before a military commission, tried on charges based on their opposition to war measures of the government, and were convicted and sentenced to be hanged. The charges against them were so vague that their eminent counsel, Jeremiah S. Black, said to the justices of the United States Su­preme Court:

"The charge is found in this record, but you will not be able to decipher its meaning. The judge advocate must have meant to charge them with some offense unknown to the laws, which he chose to make capital by legislation of his own."

May 19, 1865, was the day set for their execution. These men had not lived in the war zone, and they never had been in the military or naval service of the United States. The only thing that saved them from death was the Consti­tution. They availed themselves of the right to a writ of habeas corpus, and their cases reached the Supreme Court. They contended that they had been de­prived of their right to trial by jury. Though the executive department of the government, as represented by the attor­ney-general, demanded their execution on the military verdict, the Supreme Court declared their convictions illegal, and set them free. In that case (Ex parte Milligan, 4 Wall. 2) the court, speaking through Mr. Justice David Davis, said:

"No graver question was ever considered by us. . . . The founders of our government were familiar with the history of the struggle for liberty, and they made secure in a written Constitution every right which the people had wrested from power during a contest of ages. . . . Those great and good men foresaw that troublous times would arise, when rulers and people would become restive under restraint, and that the principles of constitutional liberty would be in peril, unless established by irrepealable law. . . . The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, in­volving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doc­trine leads directly to anarchy or despotism. . . . Wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln. . . . Our fathers knew that unlimited power was especially hazardous to freemen."

In other countries men are locked up indefinitely on mere official nods. In certain European countries, hundreds of thousands of men and women are today in prison without knowing what they are accused of or who put them there. Neither friends nor counsel are permit­ted access to them.

Our Constitution guarantees to every defendant a speedy trial. ... No pun­ishment can be inflicted except that pre­scribed by law. The trial must be con­ducted in the spirit of fairness.

Another bulwark of individual free­dom is that provision of the Constitution which reads: "Congress shall make no law respecting an establishment of re­ligion, or prohibiting the free exercise thereof; or 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."

Here the citizen's property, as well as his life and liberty, is protected by the Constitution. Our organic law declares, "Private property shall not be taken for public use without just compensation." In Loan Association vs. Topeka, 87 U.S., 655-665, the Supreme Court denounced arbitrary decrees "under legislative forms," and said:

"To lay with one hand the power of the government on the property of the citizen, and with the other to bestow it upon favored indi­viduals, . . . is none the less a robbery because it is done under the forms of law."

In U. S. vs. Lee, U. 8., 196, the Su­preme Court uttered these words:

"No man in this country is so high that he is above the law. All the officers of the govern­ment, from the highest to the lowest, are crea­tures of the law, and are bound to obey it. Shall it be said that the courts cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and con­verted to the use of the government without lawful authority, without process of law, and without compensation, because the President has ordered it and his officers are in posses­sion?"

Many other examples might be cited showing how the Constitution upholds the rights of even the humblest citizen. These guaranties are the soul-substance of free government. They are as essen­tial to the life of this Republic as roots are to the life of a tree.

Some persons lightly refer to proposed amendments as "a change in the rules." While a few provisions of the Consti­tution are merely rules which might be changed without structural damage, most of its provisions are principles which can no more be amended without fatal results to our constitutional gov­ernment than the Ten Commandments could be amended without undermining the world's social order. To change by amendment the date of the Presidential inauguration from March 4 to January 20 is a change of rule that does not affect the government structure. To amend the Constitution so as to take away the judicial power of the Supreme Court or the legislative power of Con­gress is so to change our house of gov­ernment as to make it uninhabitable by the spirit of liberty. . . .

Power Must Be Controlled

"The one assured result of historical investigation is the lesson that uncontrolled power is invariably poisonous to those who possess it. They are always tempted to impose their canon of good upon others, and they assume that the good of the community depends upon the continuance of their power. Liberty always demands a limitation of political authority."

If the power of the Supreme Court to keep the Chief Executive and Congress within those limits prescribed for them by the Constitution is taken away, our written guaranty of personal liberties would become mere "scraps of paper," to be tossed aside at the whim of President or Congress. . . .

Democracy descends to a dictatorship with ease. There is never any tarrying at some halfway place. When Thomas Jefferson, John P. Curran, and others said: "Eternal vigilance is the price of liberty," they were not indulging in mere rhetoric. What we are indifferent to, we lose. Material from which despotism may be engendered is especially abundant in times of economic stress. Depressions breed discontent, and discontent begets emotions, the heat of which is incompatible with cool, clear thinking. . . .

When people find life's burdens heavy, and long for political "messiahs," there are always those who come forward, assume a prophet's pose, claim to be divinely qualified, and begin to talk about establishing "a new social order." Each proclaims his possession of legislative "keys" to the longed-for paradise of plenty, and the idea is popularized that government is something to live not under but on. . . .

The surrender of the liberty Americans have enjoyed since independence was won and the Constitution adopted, would be a big price to pay for even certain economic security. It is too high a price to pay for a promise! For 150 years Americans have had a higher degree of economic security than any other people. They achieved this under a system which did not discourage industry and did not encourage indolence. Their achievements were due to no dictator, but to their own individual efforts. They belonged to a breed whose fiber was never feeble. Americans will con­tinue to achieve the highest degree of economic security attainable by human beings only by reliance on those un­amenable virile qualities which made their fathers great. . . .

The nation itself must be wisely and well organized to protect rights, and that is exactly what the American people in convention assembled did when, under the leadership of Washington and Madi­son and Hamilton, they organized this nation according to the plans and speci­fications of the Constitution they ordained.

Fortunate is our nation with its consti­tutional safeguards of individual rights and an independent Supreme Court to maintain them.

*From an article by Justice George W. Maxey of the Supreme Court of Pennsylvania, in the Nation's Business, October 1935. Used in Liberty, First Quarter 1936.

Author: George W. Maxey

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