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The New International Encyclopædia/Constitutional Law

CONSTITUTIONAL LAW. In general, that branch of public law which deals with the nature and organization of government, the distribution and mode of exercising the sovereign powers of the State, and the relations of the Government to those who are subject to its authority. It has nothing to do with the regulation of the external relations of a State with other States, these being governed by international law, though the agencies for maintaining those relations, and the determination of their character and form, may be included within the constitutional law of the State. Thus, the choice of ambassadors, as well as their rank and functions, being the direct concern of the State they are chosen to represent, is governed by its constitutional law, and so, in the United States, is the power exercised by the Senate in approving, amending, or rejecting treaties with foreign powers.

Again, where the States are not related to one another as independent political communities, but sustain a relation of superior and dependent States, as of a colony to the parent State, or a subject to a dominant State, or of a member of a federation of States to the central authority, such relations are matters not of international, but of constitutional law. Thus, the Acts of Union of England with Scotland and Ireland, the acts of the British Parliament incorporating the Dominion of Canada and the Commonwealth of Australia, the various acts of Congress providing for the government of Porto Rico, Hawaii, and the several Territories of the United States, the provisions of the American Constitution determining the relations between the General Ciovernment and the individual States—all these are as much a part of the constitutional law of the States affected by them as are their Bills of Rights, or the laws and customs determining the powers of their respective legislatures.

On the other hand, two political communities may be for some purposes constitutionally related and may yet in some respects remain foreign to one another. Thus, while the relations of the several States of the American Commonwealth to the central authority, and, through that authority to one another, are governed by their constitutional law, they are yet for many purposes independent of one another, and, in so far as they are independent, their relations are matters of international and not of constitutional law.

Specifically, the constitutional law of a State consists of its Constitution, or so much of it as is legally effective, together with the constructions and interpretations which it has received at the hands of the courts or other competent authority.

British Constitutional Law. Under a flexible constitution like that of England, which is mainly the result of the accumulated experience of ages, the principal function of constitutional law is to discriminate between those portions of the Constitution which are law, in the strict sense of the term, i.e. which have a legal sanction and will be declared by the courts, and those that rest only upon the customs of the community and upon considerations of practical expediency. These last, which are known as the ‘custom of the Constitution,’ may have a moral sanction which makes them for the time being as effective politically as the law of the Constitution. But, being legally ineffective, i.e. unenforceable by the authority of the State, they do not, strictly speaking, belong in the category of constitutional law. As a considerable part of the British Constitution is made up of such customs and practical expedients, the range of law comprised within it is comparatively narrow. It is to be remembered, however, that though custom, in and by itself considered, is not a part of constitutional law, it may become a source of such law by being adopted by the courts and declared in judicial decisions. More than one of the so-called liberties of the subject in England have thus arisen and now form part of the common law of the land. It is to be observed, also, that in Great Britain constitutional law does not exist as a separate and distinct body of rules and precedents, its provisions being an integral part of the common and statute law of the realm, from which they are to be collected.

American Constitutional Law. In a State which has a constitution of the ‘fixed’ or statutory type, like the United States, much less is left to convention and understanding, and much less depends upon custom and expediency. The area of law under such a constitution is, therefore, much wider, while the task of the constitutional lawyer is much simpler. The constitutional law of such a State consists of the terms of the Constitution itself, with the amendments thereto, and the judicial decisions in which its provisions have come up for construction and application. No acts of the legislature declaring the rights of the citizen, no treaty with a foreign government, no abdication of power by any arm of the State, enters into it. In the American system the only authoritative exposition of a constitution is that afforded by the courts. This extraordinary jurisdiction is not confined to the Supreme Court, but is exercised as well by the inferior Federal courts and by the regular tribunals of the several States. As constitutional law, the judgments of these courts vary according to the Constitution whose provisions are under examination. The Supreme Court of the United States is the final authority on the Federal Constitution, and the supreme appellate courts of the several States on the constitutions of their respective States.

It will be borne in mind that the judicial power in the United States extends to acts of Congress and of the legislatures, the Constitution being the supreme law to which all legislation must conform; whereas, the British Constitution, not being a supreme law, but a part of the ordinary law of the land, the powers of Parliament are not and cannot be limited by it. Accordingly judicial decisions upon the legislative power and its limitations, which constitute the bulk of constitutional law in the United States, are wholly unknown in England.

This, indeed, is the leading principle of American constitutional law—that all acts of government, whether legislative, judicial, or administrative, made or done in contravention of the Constitution, are void. This principle is equally applicable to the constitutions of the several States and to that of the United States. But the Federal Government being one of strictly limited powers, a still more stringent principle is applied to test the validity of its acts—namely, that they are void if not specially sanctioned by the fundamental law. But it does not lie within the competence of the courts to control the action of the State on any other principles than such as are laid down in the fundamental law. They cannot declare void an act within the general competence of the legislative powers, merely because it is contrary to natural justice, or because it violates fundamental principles of republican government, or because of a supposed conflict with the general spirit of the Constitution. It should be added that an act adjudged to be unconstitutional is held to have been void and without legal validity from the time of its enactment.

In the article Constitution (q.v.), reference is made to certain changes which the Constitution of the United States has undergone as the result of judicial interpretation and the slow growth of custom. The former of these is clearly a part of constitutional law, but it is not easy to say how far a particular custom, if threatened with violation, would be supported by the courts. It seems probable, however, that the Supreme Court would not hesitate to recognize a well-established practice of the Government as a part of the constitutional law of the land. If, for example, a Presidential elector should at the present time assert his right to disregard the instructions under which he was chosen and cast his vote for the candidate of the opposing party, there is at least a question whether he could not be restrained by the courts from carrying his intention into effect. See Constitution of the United States; Law; Public Law. Besides the authorities referred to under the title Constitution, consult: Boutmy, The English Constitution (London and New York, 1891); and Story, Commentaries on the Constitution of the United States (5th ed., Boston, 1891).