Page images
PDF
EPUB

HANDBOOK

OF

AMERICAN CONSTITUTIONAL LAW.

SECOND EDITION.

CHAPTER I.

DEFINITIONS AND GENERAL PRINCIPLES.

1. Constitutional Law Defined.

2-3. Constitution Defined.

4. Meaning of "Constitutional" and "Unconstitutional."

5. Written and Unwritten Constitutions.

6. Constitutions not the Source of Rights.

7. Bills of Rights.

8. Right of Revolution.

9. Political and Personal Responsibility.

CONSTITUTIONAL LAW DEFINED.

1. Constitutional law is that department of the science of law which treats of the nature of constitutions, their establishment, construction, and interpretation, and of the validity of legal enactments as tested by the criterion of conformity to the fundamental law.

CONSTITUTION DEFINED.

2. The constitution of a state is the fundamental law of the state, containing the principles upon which the government is founded, and regulating the division of the sovereign powers, directing to what persons each of those

BL.CONST.L.-1

powers is to be confided and the manner in which it is to be exercised.1

3. In American law, the constitution is the organic and fundamental act adopted by the people of the Union or of a particular state as the supreme and paramount law and the basis and regulating principle of the government.

In public law, a constitution is "the organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the fune tions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers." 2

Two fundamental ideas are commonly implied in the term "constitution." The one is the regulation of the form of government; the other is the securing of the liberties of the people. But the former only is essential to the existence of a constitution, though the latter has been the principal object of all constitutions established within the last century. Despotism is not inconsistent with a constitution. If, in any given country, it is settled law that the form of government shall be a monarchy, an oligarchy, or a democracy, as the case may be, and that the succession to the exercise of supreme executive power shall be determined in a regular manner, that is enough to make up the constitution of that country. The constitution of Russia establishes the supreme and arbitrary power of the Czar and determines the order of succession to the throne. That of the German Empire prescribes the rule that the King of Prussia shall be Emperor of Germany, and regulates the representation of the component kingdoms and states in the federal legislature. That of the United States establishes a republican form of government and apportions the powers of sovereignty between the Union and the states. But since the formation of the constitution of the United States, and the spread of liberal ideas throughout the civilized world, attendant upon the far-reaching influences of the French Revolution, an era of writ ten constitutions has prevailed. These charters of government, adopted or promulgated not only in North and South America but

11 Bouv. Inst. 9.

• Black, Law Dict. "Constitution."

also in most of the countries of Europe, as well as Hawaii and Japan, have been largely concerned with guarantying the rights of the governed. If a king has granted a constitution, its prime object has been to admit the people to a share in the government and to secure their liberties against the exercise of despotic authority. If the people of a state have adopted a democratic constitution, none the less have they deemed it important to specify the rights and immunities which they considered sacred and fundamental, and to make sure provision against their invasion by the men in power. Consequently. when we now speak of "constitutional government" or a "constitutional monarchy," it is this latter idea-the security of popular rights and liberties-which is principally dwelt upon.

In American constitutional law, the word "constitution" is used in a very specific sense. It does not include any theories, traditions, or general understandings as to the government or any of its details, which have not been specifically adopted as a part of the written fundamental law. It means the particular written instrument which embodies the whole of the organic law of the state or nation, and which is of supreme authority and force."

Synonyms.

In a certain sense, constitutions may be said to be laws. That is, they are rules of civil conduct prescribed by the supreme power in a state, and are as much within the definition of "laws," in the widest signification of that term, as are the acts of a legislature. Thus, the constitution of the United States is declared to be the "supreme law of the land," no less than the acts of congress passed in pursuance of it. So, also, the same instrument forbids the several states to pass any law impairing the obligation of contracts, and declares that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; and it is held that these clauses do not relate solely to the acts

"A constitution is, according to the American idea, the organization of the government, distributing its powers among bodies of magistracy, and declaring their rights, and the liberties reserved and retained by the people." French v. State, 52 Miss. 759. "The constitution of an American state is the supreme, organized, and written will of the people acting in convention, and assigning to the different departments of the government their respective powers." Taylor v. Governor, 1 Ark. 21.

of a state legislature, but that a state constitution or an amendment thereto is as much a "law," within their purview, as any statute. But in practice a distinction is made between those organic or fundamental laws which are called "constitutions" and such ordinary laws as are denominated "statutes." Both answer to the description of laws, but constitutions are seldom called "laws," and never called "statutes."

A constitution differs from a statute or act of a legislature in three important particulars:

(1) It is enacted by the whole people who are to be governed by it, instead of being enacted by their representatives sitting in a congress or legislature.

(2) A constitution can be abrogated, repealed, or modified only by the power which created it, namely, the people; whereas a statute may be repealed or changed by the legislature.

(3) The provisions of a constitution refer to the fundamental principles of government, or the establishment and guaranty of liberties, instead of being designed merely to regulate the conduct of individuals among themselves. But the tendency towards amplification, in modern constitutions, derogates from the precision of this last distinction.

MEANING OF "CONSTITUTIONAL" AND "UNCONSTITU

TIONAL."

4. "Constitutional" means conforming to the constitution. A statute or ordinance which is inconsistent with the constitution, or in conflict with any of its provisions, is said to be "unconstitutional."

The term "constitutional" means consistent with the constitution; authorized by the constitution; not conflicting with any provision of the constitution or fundamental law of the state. It also means dependent upon a constitution, or secured or regulated by a constitution; as a "constitutional monarchy," "constitutional rights." Hence, in American parlance, a constitutional law is one which is consonant to and agrees with the constitution; one which is not in violation of any provision of the constitution of the United States

or of the particular state. An unconstitutional law is one which is in violation of the constitution of the country or of the state. In those states where the same body which exercises the ordinary lawmaking power is also invested with the whole sovereignty of the nation, as is the case in Great Britain, an unconstitutional enactment is not necessarily void. There are many rules, precedents, and statutes, deemed a part of the British constitution, which are justly esteemed as valuable safeguards of liberty. But there is no one of them which parliament might not lawfully repeal. The Habeas Corpus Act, for example, might at any day be abrogated by act of parliament. Such a measure would be regarded as unconstitutional, because it would be in derogation of certain principles which are universally deemed a part of the constitution as it now stands. But it would not lack the sanction of legality. It would occupy precisely the position of an amendment to a written constitution, and would be no less the law of the land than had been the law which it destroyed. But in a country governed by a written constitution, which is of supreme authority over the lawmaking power, and to which all ordinary legislation must bend, an unconstitutional law is void and of no effect, and in fact is no law at all. Yet, so long as it stands on the statute book unrepealed, it will have the presumptive force of law, unless the proper courts have pronounced its invalidity. Until that time, any person may disregard it at his own peril, but officers are bound to give it force and effect. After it has been duly adjudged unconstitutional, the presumption is that no further attempt will be made to enforce it. But the protection of the individual rests on the probability that the courts will abide by their first decision in regard to the law.

WRITTEN AND UNWRITTEN CONSTITUTIONS.

5. Constitutions are classified as written and unwritten. All the American constitutions, national and state, belong to the class of written constitutions.

Among the various constitutional governments of the world, it is customary to make a distinction between those which possess a "written" constitution and those which are governed by an “unwritten" constitution. The distinction, however, is not very exact. It is difficult to conceive of a constitution which should be wholly

« PreviousContinue »