The New International Encyclopædia/Constitution

CONSTITUTION (Lat. constitutio, a settlement of a controversy; then a decree; from conttituere, to cause to stand, to establish, from con- + statuere, to erect, to establish). Formerly used of any law promulgated by sovereign authority. In the Roman Empire, the imperial legislation, decreed and put into effect by the will of the Emperor, was comprehensively described by the term constitutiones. These included rescripts, or answers to questions or petitions; mandates, or instructions to officials, administrative and judicial; decrees, or judgments on causes brought before him, directly or on appeal; and edicts, or general proclamations. See Civil Law.

So in early English law, constitution signified any statute, though it was not commonly employed except with reference to certain important legislation affecting the relations of the State and the Church. Thus, the Constitutions of Clarendon were laws enacted in the reign of Henry II. at a Parliament held at Clarendon in 1164, restricting the power of the clergy, limiting the right of appeal to the Pope, and virtually making the King the supreme head of the Church in England.

At the present time, however, the term is used in the more restricted sense of the fundamental law of a State, society, or corporation, public or private. More specifically, the Constitution of a State or society is the body of legal rules by virtue of which it is organized and governed, and which determines its legal relations to other States and societies and to its own members. This Constitution may be created by the political or other body whose powers it defines and regulates, or by the individuals composing it and from whom its powers are derived, or it may be the creation of an external authority to which it is subject. Examples of the last form of constitution are afforded by the case of the ordinary private corporation, whose fundamental law is prescribed by the State to which it owes its existence; by municipal corporations, such as cities and villages, which derive their authority from their charters of incorporation and from the municipal law of the State to which they belong; and by subject States, territories, or colonies, whose constitutions are to be looked for in the legislation of the parent or sovereign State. The constitutions of Canada, of Hawaii, of Porto Rico, and to a certain extent that of the Republic of Cuba, belong to this class—the act of the American Congress, under the authority and the limitations of which the Cuban Constitution was recently enacted, being in effect a part thereof.

Examples of the second form of fundamental law exist, in the political sphere, in popular constitutions like those of the United States, of the several States of the American Union, of the French Republic, and of Switzerland; and, in the domain of private law, by the rules adopted by the stockholders of corporations and voluntary associations for the conduct of their affairs by their boards of directors and other officers.

The first type of constitution, in which the fundamental law is the creation of the powers wielding the sovereign authority of the State, is to be found in all of the monarchical States of Europe which have adopted, in whole or in part, a constitutional form of government. The free Constitution of England, so popular in character and so largely the product of custom, in a strict legal sense, belongs in this category as clearly as does the government of the Czar, the autocratic character of which has been modified by imperial concessions. To this class also we must refer the Constitution of the Roman Empire, as well as of the Republic, and of the free commonwealths of ancient Greece. It is to this form of constitution, because it is alterable bv the ordinary legislative authority of the State, that Mr. Bryce applies the term ‘flexible,’ while constitutions of the second and third classes, which are superior to the ordinary law-making power and not capable of amendment except by the higher authority which created them, he describes as ‘rigid’ constitutions.

It is obvious that the authority of a self-imposed constitution differs widely from that of a true fundamental law, which underlies the ordinary processes of government and by which a political society has chosen to limit or has been constrained to restrict its governmental agencies. In a legal sense, therefore, the real distinction between constitutions does not turn upon the ease or difficulty with which they can be altered, nor yet upon the fact that the established process for amending a constitutional provision differs from the ordinary processes of legislation, but in the fact that a constitution of the one type is a part of the ordinary law of the land, and that a constitution of the other type is superior to the ordinary law; that in the one case legislation is irresponsible and uncontrollable, while in the other it is controlled by the fundamental law. In a State having a constitution of the one sort we shall expect to find a court or other independent representative of the sovereign power from which the Constitution was derived, which shall protect it from encroachments on the part of the ordinary law-making power; in a State of the other sort, we shall look to see the governing authority of the State unfettered by any external authority—itself the supreme representative of the sovereignty of the State.

Ordinary Constitutions.—The Constitution of Great Britain affords the best modern example of the nature and operation of an ordinary constitution; that of the United States, the best example of an extraordinary, or supreme, constitution. The British Constitution is an indefinite body of legal rules and principles, partly customary, partly the result of judicial decisions, and partly made up of acts of Parliament. These are nowhere collected in one place, but must be extracted from the whole body of the common and statute law of the realm and from observation of the workings of the Government. Any act of Parliament and any judicial decision may modify it, and not infrequently statutes have been passed which have contained both constitutional and ordinary legislation mingled together in one and the same paragraph. Not only is there no authoritative statement of the British Constitution to be found, but, from its very nature, no such statement could be made. So much of it depends upon custom and so much is left to time and circumstance, that the most precise definition of its terms would be the most misleading. No law, statutory or judicial, has created the Cabinet, to which, as the executive committee of the House of Commons, the government of the Empire is at present committed; but whether it is really the Cabinet, or a committee of the Cabinet, or the Prime Minister, that governs England, is so much a question of personality and of circumstances that it defies answer. So no one can say whether the Crown still retains the ancient prerogative of vetoing an act of Parliament. It is commonly assumed that the power is extinct. The only safe statement that could be made, however, would be that the right has not been exercised for nearly two hundred years, and that only a grave emergency would justify the sovereign in employing it; and if this should occur, there is no lawful process by which the act, however repugnant to current ideas of government in England, could be declared unconstitutional or deprived of its legal effect. Under such a system the Constitution would sanction any governmental act which could be performed without precipitating a revolution.

The latest English writers distinguish between the law and the custom of the Constitution, the former having reference to certain statutory provisions—such as the act settling the succession to the crown, the bill of rights, etc.—which, being laws in the strictest sense of the term and tending to limit the authority of a single branch of the Government and not the supremacy of Parliament, are capable of enforcement by the courts; and the latter, to the great body of customary rules and observances which in practice control the working of the Government and the distribution of its powers, but are enforced only by public opinion and by respect for the settled order of the Constitution. The latter are not true laws, as they lack the sanction of any but legal authority to declare and enforce them. In the field of ordinary jurisprudence no such distinction as this can be drawn between custom and law. There custom is law, and will be enforced as such. But the case is manifestly different in the sphere of constitutional law, for there a custom tending to restrict the action of the sovereign power can find no jurisdiction to enforce it.

A constitution of the ordinary legal type may belong to either of the two old categories of ‘written’ and ‘unwritten’ constitutions—an unwritten constitution being one which is wholly or largely based on custom or judicial decisions, and a written constitution being the result of a specific act of legislation and having the definite form and the certainty of a body of statute law. But the distinction, though sound enough, is of no practical importance, as no considerations of political philosophy or of legal validity are involved in it. In fact, every political constitution is a composite of common and statute law, of custom and of legislation, and the validity of its several provisions is not in the least dependent upon the manner in which the principles which they embody have acquired the form and content of legal authority. The British Constitution, for example, is much more than a body of customary law. At least five important sources of the rules and principles which it embodies may be distinguished. These are: (1) Two principal treaties, the Act of Union with Scotland in 1707 and the Act of Union with Ireland in 1800. (2) Certain great ‘compacts,’ viz. Magna Charta, in 1215, the Declaration of Right, in 1689, and the Act of Settlement, in 1701. (3) A large number of public acts of Parliament, ranging from matters of the greatest to those of the least political importance. (4) The body of precedents and customs known as the common law. (5) The usages and practices known specifically as the customs of the Constitution, which are in reality the mass of practical expedients and understandings by which government is mainly carried on. To these last we have denied the character of law, partly because of their indefiniteness and fluctuation, but more particularly because of their lack of a legal sanction. The fourth class consists of legal rules in the proper sense of the term, but of the sort contemplated by the use of the word unwritten; but nevertheless, if formal treaties and acts of Parliament are written law, then is the British Constitution, in part at least, a written constitution. Some constitutions of the ordinary type, however, are of the strictly ‘written’ sort, being the result of a single legislative act or a grant of power from the sovereign head of the State. Most of the constitutions which have been promulgated in the several States of Continental Europe, as well as that of Japan, are of this character. They have the common characteristic of the lack of any superior sanction. A law enacted by the ordinary legislative authority and promulgated by the supreme executive power of the State is a law, whether sanctioned by the Constitution or not. In other words, a law may be unconstitutional and yet valid.

Extraordinary Constitutions.—As the polity of the British Empire furnishes the best example of the ordinary, ‘flexible,’ and unwritten constitution, so does the fundamental law of the United States exhibit the best and most characteristic constitution of the opposite type—of the extraordinary, or supreme, and ‘rigid’ form. Though the constitutions of the General Government and of the several States have very great and even fundamental differences, they are all alike in this respect, that the organic law has a sanction superior to that of the ordinary law of the land; that the Constitution is in fact ‘the supreme law’ to which the ordinary law must conform; that the sovereignty is not wholly committed to the ordinary agencies of government, but the power of these is limited, and that this limitation on legislative and executive action is not a mere form of words, but is rendered effective by the power vested in the courts of annulling acts of the State in contravention of the supreme law. The Federal Government and the governments of the States are, therefore, not sovereign, but legally limited corporations, strictly analogous to private and minor municipal corporations, which derive a limited authority from the State which created them. There is nothing singular in the power exercised by the courts in declaring a corporate act invalid because of its transcending the legal authority of the body performing it, even in the political sphere. It is plain that the political action of a colony, even of the ‘self-governing’ type, and of dependent States, as well as of cities and towns, is subject to control by the dominant political authority. The British Parliament and the English courts exercised this authority over the American colonies as they now exercise it over Canada and Australia. The novelty of the American system consists in the application of this familiar principle to independent and sovereign States. The right of the Supreme Court of the United States, and even of the ordinary Federal tribunals, to pass upon the validity of acts of the National Congress was long disputed, but it was asserted by the Supreme Court as early as 1797, and actually exercised in the celebrated case of Marbury vs. Madison in 1803. This conclusion was so plainly sound, and so obviously necessary to the working of the American constitutional scheme, that it has been generally acquiesced in. Several of the State courts had in the meantime reached a similar decision as to their authority to nullify acts of their own legislatures when in conflict with the local Constitution or with that of the United States, and the principle may now be regarded as an essential part of the constitutional system of the United States. See Supreme Court of the United States. There is one important difference between the fundamental law of the United States and that of the several States. The National Government being a federal union of independent commonwealths—some of them existing before its formation and others having come into the Union as independent States—the National Constitution is simply a grant of powers from the latter to the former, while the State constitutions are merely limitations upon the power of the ordinary agencies of government of the States. From this it follows that the Federal Government has no powers excepting such as are conferred by the Constitution to which it owes its existence, while the State governments, on the contrary, have vested in them the full sovereignty of the commonwealth, excepting as this is limited by the local Constitution and that of the United States. The function of the courts of the United States and of the several States in interpreting their respective constitutions is very different therefore. An act of Congress is invalid if it transcends the powers conferred upon the legislative branch of the Government by the fundamental law; whereas, an act of the Legislature can be impeached for unconstitutionality only if it is in contravention of one of the limits placed by the Constitution on legislative power.

In general, constitutions may be amended, altered, or abrogated by the same power which created them, or by a process provided in the fundamental law for that purpose. A constitution which is the free gift of the sovereign authority may be recalled or nullified by the authority that conferred it. A rigid constitution of the American type, which is the creation of the people, and which cannot be directly changed without their concurrence, has in practice been found to be of the most inflexible kind. For a period of more than sixty years after the adoption in 1803 of the Twelfth Amendment (relative to the election of President and Vice-President) the Constitution of the United States did not suffer a single amendment, and the three amendments adopted at the close of the Civil War, and as the result thereof, have been the only changes which it has since sustained. Like the English Constitution, however, it has changed greatly, though imperceptibly, by the insidious processes of custom and of judicial interpretation. The history and language of the instrument, and the nature of the changes which it has undergone, will be set forth in the article on the Constitution of the United States. See also Government; State; Sovereignty; Great Britain; and the titles of other States concerning whose constitutions information is sought.

Consult: Bryce, The American Commonwealth (2d ed., London and New York) and Studies in History and Jurisprudence (London and New York, 1901); Burgess, Political Science and Comparative Constitutional Law (Boston, 1900); Anson, Law and Custom of the Constitution, part i. (7th ed., Oxford. 1893), part ii. (2d ed., 1896); Dicey, Lectures Introductory to the Study of the Law of the English Constitution (4th ed., London, 1893); Bagehot, The English Constitution (new ed., London, 1896); Von Holst, Constitutional and Political History of the United States (Leipzig; Am. ed., Chicago); Cooley, Treatise on the Constitutional Limitations which rest upon the Legislative Power of the States (Boston, any edition). Consult also the historical works referred to under the various titles United States; Great Britain, etc.