Page:North Dakota Reports (vol. 2).pdf/535

 not be one thing under the federal constitution, and an entirely different thing under a state constitution, containing the same guaranties, couched in the same language, and written in the same spirit. The mind cannot conceive of a question more purely national in its character than the extent of that liberty which is the birthright of every citizen in every state and territory in the land. It is one of the fundamental rights; not one thing in one state or section and something different in another state or section, but an all pervading principle, interwoven with the very structure of our polity, state and national. The nation was builded that all of its citizens might enjoy a distinctively American liberty. To the nation’s tribunal the people committed the preservation of that liberty against state encroachment by the fourteenth amendment. By this very act the people lifted the question from one of state control into the broader field of national control. In its essential nature it was national before, although prior to that time each state might by its own constitution have settled for itself the boundaries of that liberty. Not so now. The right to trace those boundaries is now lodged with the federal supreme court. The question of liberty being national in its character, the spirit of the fourteenth amendment is that the nation’s court shall determine the scope of that liberty, that it may be the same throughout the nation. The mere wantof power in the federal supreme court to compel the state courts to give the citizen no greater liberty than the former court accords him affords no reason why such courts should refuse to follow the line of less extended liberty drawn by the federal court. While there is great difference between the facts of the case and the facts in the Munn and Budd Cases, it may be that this difference is not of such a nature as to distinguish this case from those in principle. My associates are clear on this point. I confess that I have doubts about it. My views, however, cannot affect the decision, and the federal supreme court must ultimately determine this question. Whatever I think about it will be of no weight before that court, which must settle for itself the limits of the doctrine it has enuniciated. If that doctrine is to be much extended, I greatly fear that our boast of liberty will be