The law by which a government is organized and by which basic principles of its existence are formulated and enforced is known as constitutional law.
The constitutional law of any country may be in a highly advanced or a very crude condition. It may consist in a document drawn up to embrace all of the constitutional law (as in our Federal constitution), or it may consist merely in detached charters or in practices and principles recognized as fundamental in the life of the nation. In the former case we say that the constitution is written; in the latter unwritten.
"In a much qualified and very imperfect sense every state may be said to possess a constitution, that is to say, some leading principle has prevailed in the administration of its government until it has become an understood part of its system, to which obedience is expected and habitually yielded; like the hereditary principle in most monarchies, and the custom of choosing the chieftain by the body of the people which prevails among some savage tribes. But the term constitutional government is applied only to those whose fundamental rules or maxims not only locate the sovereign power in individuals or bodies designated or chosen in some prescribed manner, but also define the limits of its exercise so as to protect individual rights and shield them against the assumption of arbitrary power. The number of these is not great, and the protection they afford to individual rights is far from being uniform." 2
It will be noticed that there are properly two ideas embraced in the words "constitutional law" - the idea of organizing the government upon a working basis by establishing its departments and offices, and the idea of limiting the power of those who legislate and rule by establishing certain principles for the protection of the individual which may not be departed from. Thus in our Federal Constitution we have these two ideas highly exemplified - the organization of our government and the limitation of its power over individual rights. Where the rights of the individual are assured in this manner, the government is a truly "constitutional government."
A law is said to be "unconstitutional" when it is opposed to the constitutional law. The effect of an attempt to enact such a law varies according to whether the constitution itself declares all such laws void, or whether the legislating body is permitted to keep unrestricted power to legislate as it will. In the former, as in the United States, the law is void, is in fact, no law at all, and the word "unconstitutional law" is a self-contradiction, although custom has sanctioned its usage. In the latter, as in England, the phrase "unconstitutional law" is used to indicate merely that the law so enacted is contrary to the fundamental principles of the government as commonly understood, and therefore should by subsequent legislation be repealed.
Let us now notice more particularly our Federal and the state constitutions.
The Federal constitution is a grant of power by the states to the
2. Cooley, Constitutional Limitations, 7th Ed., p. 4.
Federal Government by which sovereignty is bestowed and prescribed powers conferred.
The original colonies, after experimenting unsuccessfully without centralized power in the "league of friendship" known as the Articles of Confederation,3 were driven by the logic of events to the adoption of the present Federal Constitution. The United States Constitution was adopted in convention on September 17, 1787, to go into effect by the ratification of nine states. It was ratified by the necessary number on June 21, 1788, and went into effect March 4, 1789.
The first ten amendments were ratified by the various dates from November 20, 1789, to December 15, 1791, and are restrictions on Congress in the nature of a Federal bill of rights.
The 11th amendment was declared ratified January 8, 1798, and relates to the judicial power.
The 12th amendment was proclaimed as ratified September 25, 1804, and relates to the mode of election of the President and the Vice President.
The 13th amendment resulted from the civil war and abolishes slavery and was declared ratified December 18, 1865.
The 14th amendment was declared ratified July 21, 1868. It relates to citizenship.
The 15th amendment was declared ratified March 30, 1870.
The 16th amendment was effective February 23, 1913, and gives Congress the power to tax incomes.
The 17th amendment was effective May 31, 1913, and provides for the election of senators by direct vote.
The 18th amendment was in force January 17, 1920, and establishes national prohibition of the making or sale of intoxicating liquors.
3. Adopted July 9, 1778.
The 19th amendment was proclaimed adopted in August, 1920, and establishes woman suffrage.
The federal constitution is in its nature a grant of power. Each state, being in effect sovereign, granted to the federal government the powers therein stipulated, all power not therein granted being retained. Accordingly we speak of the federal government as a grant of power, and from this fact arises the governing principle of construction that the federal congress has no power of legislation except such as has been granted in the federal constitution, either expressly or by reasonable implication.
The federal constitution (1) sets forth the form of the federal government, (2) stipulates the powers of congress, (3) contains a bill of rights.
The federal government has a threefold division created by the constitution - the executive, the legislative and the judicial. These departments are co-ordinate in rank. The question early arose whether the judiciary had the power to declare unconstitutional a law enacted by congress. But Chief Justice Marshall in a strong opinion,4 basing his reasoning upon the provision of the constitution that it shall be the supreme law of the land, decided that it is within the power and that it is the duty of the court to declare an enactment null and void if it shall be found against the constitution or without the power of congress to enact. This right is now taken as a matter of course.
What are the powers delegated to the federal government?
First, sovereignty has been granted. As far as other sovereignties are concerned, the federal government is the repository of all power and the states are unknown except as divisions of the United States.
4. Marbury v. Madison, 1 Cranch. (U. S.) 137.
Second, we may say that the states have retained the general power to deal with questions of local commerce, with questions of individual rights and status, with questions of property.
Third, to the federal government has been given jurisdiction on matters deemed to be of more than local importance, particularly interstate commerce, coinage of money, patents, post office, bankruptcies, and taxation for federal revenues. The enumeration of the particular powers of the constitution is in Section Eight of the constitution.
Another question which agitated men's minds in our early history was whether the constitution should have a strict or a liberal construction, and Chief Justice Marshall in McCulloch v. Maryland 5 resolved this doubt in favor of a liberal construction which may be formulated in words to this effect, that congress has not only power to enact such laws as are specifically provided for in the constitution, but all laws that are necessary or reasonable for carrying into effect the express constitutional powers.
The manner of the amendment of the constitution is provided therein.