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§ 9. “Under the Constitution.”

The words, “Under the Constitution,” imply substantial subjection. The Commonwealth is a political community, carved out of the British empire and endowed through its Constitution with a defined quota of self-governing powers. Those powers are delegated by and derived from the British Parliament, and they are to be held, enjoyed, and exercised by the people of the Commonwealth in the manner prescribed by the grant, subject—(1) to the supreme British Sovereignty (under the Crown), and (2) to the Constitution of the Commonwealth. The Commonwealth is consequently under a double subjection. It is subject in the first place to the British Parliament, which, as the ultimate sovereign authority of the Empire, has the legal power to legislate for the Commonwealth as a part of the Empire, and even to amend or repeal the Constitution of the Commonwealth. The grant of a Constitution to any dependency of the Empire is, however, a practical guarantee that no Imperial legislation conflicting with such grant will be passed except at the express request and with the concurrence of the dependency.


  ― 301 ―
On a few subjects of specially Imperial concern, and as to which uniformity of regulation is specially important, the Imperial Parliament still occasionally legislates for all the Queen's Dominions; see for instance the Copyright Act, 1842 (5 and 6 Vic. c. 45); parts of the Merchant Shipping Act, 1894 (57 and 58 Vic. c. 60) and the Privy Council Acts. Such legislation when expressly extended to the Colonies will be as binding on the Parliament and people of the Commonwealth as is the Constitution itself. (See Lefroy, Leg. Power in Canada, p. 208.) In the second place, it is under a real subjection to the Constitution, as a living central force, continuously in action, keeping the ruling organs of the federated community within the respective spheres mapped out by the Constitution, and checking invasions and encroachments beyond the limits of those spheres. Not only the Federal Government, but the Governments of the States, will be under the Federal Constitution to the extent to which the Constitution limits their powers, and to the extent to which the power of amendment may be exercised. The Constitution will therefore be the supreme law of the land binding the people of the Commonwealth, the Federal Parliament, and all the governing agencies and instruments of the Commonwealth to the extent expressed.

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