Volume II Part 98 (1/2)
The theory upon which our political inst.i.tutions rest, is, that all men have certain inalienable rights--that among these are life, liberty, and the pursuit of happiness; and that, in the pursuit of happiness, all avocations, all honors, all positions are alike open to every one, and that, in the protection of these rights, all are equal before the law. Any deprivation or suspension of any of these rights, for past conduct, is punishment, and can be in no otherwise defined.
Punishment not being therefore restricted, as contended by counsel, to the deprivation of life, liberty, or property, but also embracing deprivation or suspension of political or civil rights, and the disabilities prescribed by the provisions of the Missouri Const.i.tution being in effect punishment, we proceed to consider whether there is any inhibition in the Const.i.tution of the United States against their enforcement.--(c.u.mmings _vs._ The State of Missouri, 4 Wallace, 351-323, and _ex parte_ Garland--same volume.)
We are aware that the Supreme Court of Missouri, in the case of Blair _vs._ Ridgley, hold a different view, but we submit that the cases differ in a most material point, to wit: In the Blair case he was merely required to take the oath taken by all voters; and, by refusing to do so, he virtually disfranchised himself. In this case, however, the disfranchis.e.m.e.nt of the plaintiff is arbitrary and insurmountable; and we further submit, that the arguments in this case present it in a different, and, we think, a broader view than was taken in the Blair case. But to show that we are not unsupported by authority in this matter, we will now quote from a New York case, very similar to the Blair case, where the elector was required, but refused to take the oath, etc.
MILLER, J.: This case involves the const.i.tutional validity of that portion of the act to provide for a convention to revise and amend the Const.i.tution of this State, which excludes from the privilege of voting all who refuse to take the test oath prescribed by the act in question.
I think that the oath in question was unconst.i.tutional and invalid, for the reasons which I will proceed to state. The first subdivision of the tenth section of the first article of the Const.i.tution of the United States provides, that ”no State shall pa.s.s any bill of attainder, _ex post facto_ law, or laws impairing the obligations of contracts, or grant any t.i.tle of n.o.bility.” The provision of the act which is to be considered declares, that no person shall vote at the election for delegates to said convention who will not, if duly challenged, take and subscribe an oath that he has not done certain acts mentioned therein, and inflicts the penalty of political disfranchis.e.m.e.nt without any preliminary examination or trial, for a refusal to take said oath.
By this enactment the citizen is deprived, upon declining to conform to its mandate, of a right guaranteed to him by the Const.i.tution and laws of the land, and one of the most inestimable and invaluable privileges of a free government.
There can be no doubt, I think, that to deprive a citizen of the privileges of exercising the elective franchise, for any conduct of which he has previously been guilty, is to inflict a punishment for the act done.
It imposes upon him a severe penalty, which interferes with his privileges as a citizen, affects his respectability and standing in the community, degrades him in the estimation of his fellow-men, and reduces him below the level of those who const.i.tute the great body of the people of which the Government is composed. It moreover inflicts a penalty which, by the laws of this State, is a part of the punishment inflicted for a felony, and which follows conviction for such a crime. It is one of the peculiar characteristics of our free inst.i.tutions, that every citizen is permitted to enjoy certain rights and privileges, which place him upon an equality with his neighbors. Any law which takes away or abridges these rights, or suspends their exercise, is not only an infringement upon their enjoyment, but an actual punishment. That such is the practical effect of the test oath required by the act in question, can admit of no doubt, in my judgment. It arbitrarily and summarily, and without any of the forms of law, punishes for an offense created by the law itself. In the formation of our National Const.i.tution, its framers designed to prevent and guard against the exercise of the power of the Legislature, by usurping judicial functions, and for the punishment of alleged offenses in advance of trial, for offenses unknown to the law, and by bill of attainder and _ex post facto enactments_, etc.--(Green _vs._ Shumway, 36 Howard's Practice Rep., pp. 7, 8.)
On the same subject, we will next quote from a decision by the Supreme Court of Nevada:
LEWIS, C. J.--The form of the law by which an individual is deprived of a const.i.tutional right is immaterial. The test of its const.i.tutionality is, whether it operates to deprive any person of a right guaranteed or given to him by the Const.i.tution. If it does, it is a nullity, whatever may be its form. Surely a law which deprives a person of a right, by requiring him to take an oath which he can not take, is no less objectionable than one depriving him of such right in direct terms.
To make the enjoyment of a right depend upon an impossible condition, or upon the doing of that which can not legally be done, is equivalent to an absolute denial of the right under any condition. The effect, and not the language of the law, in such case, must determine its const.i.tutionality. It would not be doubted for a moment that a law expressly denying the elective franchise to any person upon whom the Const.i.tution confers it would be unconst.i.tutional. Why, then, is a law less objectionable which, although not expressly and directly, yet no less certainly denies the right, etc.--(Davies _vs._ McKeeby, 5 Nevada Rep. 7,371.)
We quote next from a Tennessee case:
The elective franchise is a right which the law protects and enforces as jealously as it does property in chattels or lands. It matters not by what name it is designated--the right to vote, the elective franchise, or the privilege of the elective franchise--the person who, under the Const.i.tution and laws of the State is ent.i.tled to it, has a property in it, which the law maintains and vindicates as vigorously as it does any right of any kind which men may have and enjoy.
The rules of law which guard against deprivation or injury, the rights of persons in corporeal properties, are alike and equally applicable to the elective franchise, and alike and equally guard persons invested with it against deprivation of or injury to it.
Persons invested with it can not be deprived of it otherwise than by ”due process of law.” See
The State _vs._ Staten, 6 Caldwell's Rep., p. 243. See also Rison _vs._ Farr, 25 Ark. Rep., p. 173; Winehamer _vs._ People, 13 N. Y., 378; State _vs._ Symonds, 57 Maine, 150, 511; Huber _vs._ Riley, 53 Penn., 112; Cooley's Const.i.tutional Limitations.
We conclude this list of references with Mr. Webster's celebrated definition in the Dartmouth College case (4 Wheaton, 581):
By the law of the land is most clearly intended the general law; a law which hears before it condemns, which proceeds upon inquiry, and renders judgment only after trial. The meaning is, that every citizen shall hold his life, liberty, property, and immunities, under the protection of the general rules which govern society. Everything which may pa.s.s under the form of an enactment is not, therefore, to be considered the law of the land. If this were so, acts of attainder, bills of pains and penalties, acts of confiscation, acts reversing judgments, and acts directly transferring one man's estate to another, legislative judgments, decrees and forfeiture, in all possible forms, would be the law of the land.
Such a strange construction would render const.i.tutional provisions of the highest importance completely inoperative and void. It would tend directly to establish the union of all powers in the Legislature. There would be no general permanent law for courts to administer, or for men to live under. The administration of justice would be an empty form--an idle ceremony. Judges would sit to execute legislative judgments and decrees; not to declare the law, or to administer the justice of the country.
That the elective franchise is a privilege of citizens.h.i.+p, we have the authority of Judge Was.h.i.+ngton, for he says:
What are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are in their nature fundamental; which belong of right to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, from the time of their becoming free, independent, and sovereign. What those fundamental principles are, it would perhaps be more tedious than difficult to enumerate.
They may, however, be all comprehended under the following general heads: Protection by the Government, the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety, subject, nevertheless, to such restraints as the Government may justly prescribe for the general good of the whole; the right of a citizen of one State to pa.s.s through, or to reside in any other State for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of _habeas corpus_; to inst.i.tute and maintain actions of every kind in the courts of the State; to take, hold, and dispose of property, either real or personal; and an exemption from higher taxes or imposition than are paid by the citizens of the other State, may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental; to which may be added, the elective franchise, as regulated and established by the laws or Const.i.tution of the State in which it is to be exercised (Corfield _vs._ Corryell, 4 Wash. C.C., 380). Cited and approved in Dunham _vs._ Lamphere, 3 Gray, 276 (Ma.s.s.); Bennett _vs._ Boggs, Baldwin Rep., 72.
A proper construction of Art. 1, Sec. 2, of the Const.i.tution of the United States will further demonstrate the proposition we are endeavoring to uphold. That section is as follows:
ARTICLE 1, Section 2. The House of Representatives shall be composed of members chosen every second year by the people of the several States; and the electors in each State shall have the qualifications for electors of the most numerous branch of the State Legislature.
This section consists of two clauses, but in neither is there a word as to the s.e.x of the elector. He, or she, must be one of the people, or ”citizens,” as they are designated in the Const.i.tution, that is all.--(Story's Comms. -- 579.)
The ”people” are to elect. This clause fixes the cla.s.s of voters; the other clause is in subordination to that, and merely provides, that as touching qualifications, there shall be one and the same standard for the Federal and for the State elector. Both are mentioned and neither is or can be excluded by the other.
The right to vote is very different from the qualification necessary in a voter. A person may have the right to vote, and yet not possess the necessary qualifications for exercising it.
In this case, the right to vote is derived from the Federal Const.i.tution, which designates the cla.s.s of persons who may exercise it, and provides that the Federal elector shall conform to the regulations of the State, so far as time, place, and manner of exercising it are concerned. But it is clear that under this authority the State has no right to lay down an arbitrary and impossible rule. As before stated by the Chief-Justice of Nevada: ”To make the enjoyment of a right depend upon an impossible condition, is equivalent to an absolute denial of it under any condition.”