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notwithstanding, and irrespectively of what may be the opinions and efforts of those exercising the political powers of these States.

The individual Commonwealths, having a political tatus only as members of the Union, have not the legal power to place themselves, as political bodies, in opposition to the national will. Their legislatures, their courts or their executive officials may attempt acts unwarranted by the Federal Constitution or Federal law, and they may even command generally that their citizens shall refuse obedience to some specified Federal laws or to the Federal authorities generally, but in all such cases such acts are, legally viewed, simply void, and all individuals obeying them subject to punishment as offenders against national law. The fact that their respective States have directed them to refuse obedience or offer resistance to the execution of the Federal laws can afford them no immunity from punishment, for no one can shelter himself behind an unconstitutional measure which is, in truth, not a law at all, but only an unsuccessful attempt at a law.3

Constitutional law

In the broadest sense of the term, every politically organized society possesses a Constitution. By this is meant that it possesses a body of rules or principles which determine the form of government which shall exist, and allot to its various departments or officials their respective powers. When these rules are fairly definite, are recognized by those in authority as controlling, and are supported by a public opinion sufficient in force to offer a considerable guarantee that they will be obeyed, the State is said to have a constitutional government. Thus, if the political rule is monarchical in character, the government is said to be a constitutional monarchy. But, in an exact sense of the term, every politically organized society may be said to possess a Constitution, written or unwritten.

3 See for a correct statement of this principle the first annual message of President Lincoln.

In order that the rules that regulate the distribution and exercise of political authority may be better and more exactly known, they are, in most modern States, reduced to definite written statement; and in order that, as thus stated, they may have an additional binding force, they are usually drafted and adopted in some especially formal and solemn manner, and, in most cases, special provision is made as to the manner in which they may be revised and additions made to them. Ordinarily this method of revision and amendment is made considerably more difficult than is the enactment of ordinary legislative measures.

Among the modern great nations Great Britain stands alone as a State without a formal written instrument of government. She has, however, a government controlled by a definite body of constitutional rules and practices, many of these being embodied in important written documents, such as the Magna Charta, the Bill of Rights, the Habeas Corpus Act, etc., but, however politically sacrosanct these principles thus definitely stated, and however controlling in practice the great body of her written public law, the essential characteristic of England's constitutional system is that she is ruled by a legally omnipotent Parliament which has the legislative power to change, by ordinary statutory enactment, any or every feature and rule of her governmental organization. In this last respect it is to be observed, however, that, legally speaking, Great Britain does not in fact stand upon a different footing from those States which have adopted written instruments of government the amendment or final interpretation of which is within the control of the legislative branch.

The adoption of written Constitutions does not prevent the existence and development of bodies of unwritten constitutional law; for, however comprehensive these fundamental documents may be, there inevitably grows up a considerable body of unwritten constitutional practices as fixed and, for all practical purposes, as obligatory as those provided for in the written instruments. Furthermore, in any event, a written Constitution requires interpretation, and when the power of interpretation is confided to the courts there necessarily develops in the decisions which are rendered a constantly increasing body of rules and principles which in the aggregate compose the constitutional law of the country. Thus, in the United States, in the more than two hundred volumes of the decisions of the Federal Supreme Court, not to speak of the reported opinions of the State and lower Federal courts, a complex system of constitutional jurisprudence has developed which requires the preparation of lengthy and elaborate commentaries for its statement and explanation.

From what has been said it is seen that if we are to seek a definition of constitutional law, valid for all countries, and which will distinguish it from other classes of law, we cannot accept as its peculiar characteristic the fact that it is found embodied in written and formally adopted and promulgated documents denominated Constitutions. Nor can we select as its distinguishing mark the fact that it is of superior legal validity. For, not to speak of England, which, according to such a description, could not be said to have any constitutional law at all, we are met by the fact that in no country other than our own is this legal superiority of constitutional law fully recognized. For a general definition of constitutional law we are thus thrown back upon its subject-matter, and are obliged to content ourselves with the description with which we started, namely, that it embraces all those rules and principles which determine the form of governmental organization of a State, and allot to its several organs or departments their respective powers.

This, for the purpose of general political theory, is a correct definition of constitutional law. But it is not a definition which is adequate for a nation, such as the United States, living under written Constitutions which give to the courts their final interpretation, and which obligates them, in cases of conflict between these written constitutional provisions and ordinary statutory laws, to give precedence to the former. Under this system constitutional law must be said to embrace all law that, irrespective of its substance, is contained within the four corners of written instruments of government denominated Constitutions. Were these constitutions wholly devoted to the creation of governmental machinery and the allotment of powers to its constituent parts, the law embraced within this formal definition would substantially coincide with that included within the definition stated above as satisfactory to the political theorist. But, in fact, many of our State Constitutions go far beyond this and include provisions which, viewed with regard to the matters to which they relate, properly belong within the field of private statutory law.

The Federal Constitution has of course a double function to perform. It has not only to provide for a governmental machinery for the Union, and to distribute its powers, but to delimit the respective competencies of the Nation and of the individual States. Regarded as an instrument for this second purpose it is a grant of power giving to the United States those powers which it is to possess, and leaving with the States, with but a few enumerated exceptions, those powers which are not so granted. The State Constitutions are, upon the contrary, primarily instruments of limitation. In so far as they are not devoted to providing machineries of government, they have for their end and aim the placing of limitations upon the governments which they create, which governments are held to possess all powers not denied to them by the Federal Constitution or specifically withdrawn from them by the respective Constitutions to which they owe their origin. These State constitutional limitations are for the most part upon the legislatures, and the increase in their number which the more recently adopted Constitutions have shown has evinced a growing distrust upon the part of the people of their legislative representatives. This distrust has also been shown in some instances by the insertion of provisions for the referendum and the popular initiation of laws. But not a few of these added constitutional clauses have been due to a distrust of the courts, the aim being so explicitly to authorize legislation as to render it practically impossible for the courts to interpose the objection of unconstitutionality as tested by the State Constitutions. 4

The American doctrine of the supremacy of the Constitution

It has already been indicated that in the United States

* This, however, still leaves it possible for the State courts to hold State statutes void upon the ground that they are in conflict with the Federal Constitution, and especially with that clause of the Fourteenth Amendment which declares that “no State shall deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." In those cases in which its courts so hold, there is, under existing statutes, no right of appeal by writ of error to the Supreme Court of the United States, for, by the twenty-fifth section of the judiciary act, which is still in force, that tribunal is given jurisdiction to review decrees of the State courts, by writs of error, only in those cases in which a Federal right, privilege, or immunity has been claimed and denied.

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