Separation of church and state

Religious liberty. The constitution as originally adopted declared that "no religious test shall ever be required as a qualification to any office or public trust under the United States". By amendment it was further provided that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof". Both these provision are limitations upon the powers of Congress only. Neither the original Constitution nor any early amendments undertook to protect the religious liberty of the people of the States against the action of their respective state governments. The fourteenth amendment is perhaps broad enough to give some securities if they should be needful.

Establishment of religion. By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others. It was never intended by the Constitution that the government should be prohibited from recognizing religion, or that religious worship should never be provided for in cases where a proper recognition of Divine Providence in the working of government might seem to require it, and where it might be done without drawing any distinctions between different religious beliefs, organizations, or sects.

State guaranties may be summed up as follows:

1. All religions are equally respected by the law; one is not to be favored as the expense of others, or to be discriminated against.

2. They exempt all persons from compulsory support of religious worship, and from compulsory attendance upon the same.

3. They forbid restraints upon the free exercise of religion according to the dictates of conscience, or upon the free expression of religious opinion.

These are adopted as fundamental principles.

But the courts of the Union and of the States, in administrating the common law, find it necessary to take notice that the prevailing religion of the country is Christian, and that because of the fact that certain conduct may constitute a breach of public decorum, and therefore be illegal, though it might not be where a different religion prevailed.

FREEDOM OF SPEECH AND OF THE PRESS

The First Amendment to the Constitution further provides that Congress shall make no law limiting the freedom, of speech or of the press.

The constitutional freedom of the press was intended to mean something more than exemption from censorship on advance of publication. Such censorship had never been general in the Colonies; it did not exist at all at the time of the revolution, and there was no apparent danger of its ever being restored. The press is a public convenience, which gathers up the intelligence of the day to lay before its readers, and in various ways contributes to the happiness, comfort, safety, and protection of the people.

However, in a constitutional point of view its chief importance is, that it enables the citizen to bring any person in authority any public corporation or agency, or even the government in all its departments, to the bar of public opinion, and to compel him or them to submit to an examination and criticism of conduct or measures. These advantages had been fully realized and enjoyed by the people during the revolutionary epoch.

The freedom of the press may therefore be defined to be the liberty to utter and publish whatever the citizen may choose, and to be protected against legal censure and punishment in so doing, provided the publication is to so far injurious to public morals or to private reputation as to be condemned by the common law standards. And freedom of speech corresponds to this in the protection it gives to oral publications.

TAXES, LOANS AND DEBTS.

In the specific enumeration of national powers, it is first declared that "the Congress shall have powers to lay and collect taxes, duties, imposts, and excises, to pay the debts, and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States". Thus a power is conferred which is essential to the maintenance of independent government.

The word "taxes" in its most enlarged sense, embraces all the regulate imposition made by government upon the person, property, privileges, occupations, and enjoyment of the people for the purpose of raising public revenue. The terms "duties", and "imposts" are nearly synonymous, and are usually applied to the levies made by government on the importation or exportation of commodities, while the term "excises" is applied to the taxes laid upon the manufacture, sale, or consumption of commodities within the country, and upon license to pursue certain occupations.

The power to tax is an incident of sovereignty, and is coextensive with the subject to which the sovereignty extends. It is unlimited in its ranger, acknowledging in its very nature no limits, so that security against its abuse is to be found only in the responsibility of the legislature which imposes the tax to the constituency who are to pay it.

REGULATION OF COMMERCE

Constitution provides that Congress shall have the power "to regulate commerce with foreign nations, and among the several States, and with the Indian tribes". The word "commerce" is not limited to traffic to buying and selling and the exchange of commodities; but it comprehends navigation also, and all that is included in commercial intercourse between nations and parts of nations in all its branches, and is regulated by prescribing rules for carrying on that intercourse.

Commerce with foreign nations. Congress provides that all railroad companies may carry passengers, mail, and property over one State to another, and receive compensation therefor, and may connect with other roads so as to form continuous lines for the transportation of the same to their places of destination. It also provides for the constructions of bridges over navigable rivers between States, and provides that the bridges when constructed shall be free for the crossing of all trains of railroads terminating on the sides of the rivers respectively.

Commerce between the states. To constitute commerce between States it is essential that it be not confined to one state exclusively, but concern more than one. The ordinary trade of a State, the local buying, selling, and exchange, the making of contracts and conveyances, the rules of the regulation of local travel and communication, and all the infinite variety of matters which are of local interest exclusively, are left wholly to the regulation of state law.

Commerce with Indian tribes. It is immaterial to the power of Congress over commerce with an Indian tribe that the tribe resides within the limits of a State. The power of regulation may extend to the prohibition of all intercourse except that carried on under license, and at the discretion of Congress the prohibition may no doubt be made total.

THE CURRENCY

Among the most important of the powers conferred upon the Congress is that "to coin money and regulate the value thereof and of foreign coin". This power would seem to be made exclusive by the further provision that no State shall "coin money", or "make anything but gold and silver a tender in payment of debts". To coin money is to stamp pieces of metal for use as a medium of exchange in commerce, according to fixed standards of value. When money is thus coined and valued by sovereign authority, and when by law no other standard exists, it would by force of these facts become a lawful tender.

In 1872 it was decided that Congress has power to make treasury notes a legal tender in the payments of debts previously as well as subsequently contracted.

Under the power to regulate, the legal value may be changed at discretion. As the relative values of the different metals change from time to time, it becomes necessary t comply this power with a view to uniformity in standards, since otherwise the coin of least intrinsic value in proportion of its legal rating would in time drive the other from circulation.

The States, in the exercise of their own sovereignty, will determine for themselves in what currency they will collect their taxes, and the act making treasury notes a legal tender can have no application as between a State and those upon whom the State imposes pecuniary burdens for its own necessary purposes.

COPYRIGHTS AND PATENTS

Congress is empowered "to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". Under this power, exclusive copyrights are granted for a term of years to the authors, inventors, designers, or proprietors of books, ,maps, charts, pictures, prints, statues, models, etc., and exclusive right to make, use, and vend new inventions.

Act of Congress undertaking to secure exclusive rights in the use of registered trade-marks have recently been held void, as not being within this grant of power.

An author in the United States has no exclusive property in a published work except under the Federal laws. But the common law protects him against the unauthorized publication of his manuscripts and letters.

The power to legislate on the subject of patens is plenary. The States have no power to regulate or restrict the sale of patent rights, but they are not restrained from regulating the use of patented articles under the police power.