§ 18. “Constitution.”

DEFINITION.—A Constitution is a general law for the government of a political community, unamendable and unrepealable, except in the manner and on compliance with the conditions prescribed by the authority which created it. It deals with the sovereign power of Government and the various forms, organs, and agencies through which that power is brought into action and the relations, interdependence, and co-operation of those forms, organs, and agencies, in the performance of the work of government.

A GENERAL LAW.—First, then, a Constitution is a general law or a collection of laws, capable of effective enforcement and binding on every member of the community, including the members of the Government in their private capacities. It is a law which should be couched in wide and general terms, avoiding minute specifications and details and thus leaving room for “unpredictable emergencies,” and possible and desirable developments. In the history of a Constitution there grow in association with it, and springing from its generalities, certain customs and practices, which cannot be exactly termed laws, strictly so called. These customs and practices generally relate to matters which, by the letter of the Constitution, are left to the discretion of some member or branch of the sovereign body. In time, owing to political influences and considerations, these discretionary powers are exercised in a certain manner; and hence arise what have been described as the “understandings and conventions” of the Constitution, distinguishable from the positive law of the Constitution. The essence of a law is its capacity of being executed; it implies the existence of a force able to command obedience and to punish disobedience. As such, a law is clearly contrasted with a mere understanding, or a practice, which is capable of variation and modification, according to the changing conditions and requirements of human society. A Constitution is also different from a social compact between the members of the society which it concerns; if it were a mere compact it could be repudiated and violated at the caprice of any faction or group within the society. It differs equally from a treaty or league between separate and independent states, terminable at the will of any of those states.

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GOVERNMENT.—Secondly, the law of the Constitution relates to the exercise of that sovereign power of Government which in every independent political community, occupying a defined territory, is vested either in a sovereign monarch or in a sovereign body, and which in a subordinate political community exercising delegated sovereign powers is vested in subordinate persons or bodies (see § 21, “Sovereignty”). Even an absolute monarch must ordinarily exercise his sovereign prerogatives according to certain well-understood rules and formal requisites, recognized by his predecessors and recommended by his counsellors. These rules and formalities, if compiled and classified, would compose the rudimentary “understandings and conventions” of a monarchical constitution. When the functions of government are divided among the members of a body, there must be some more specific rules appropriating certain classes of work to particular members of the governing body, determining the mode of appointment and succession of those members—such as Chief Magistrate, Legislators, and Judges—and the manner in which harmonious action may be maintained in the combined execution of the sovereign power. These rules would, if compiled and similarly classified, compose a more complex constitution, and so the greater the division, sub-division, and multiplication of governing agencies, and the greater the distribution of power, the more complex and elaborate a constitution becomes. Supreme governing power, as well as subordinate or delegated governing power, analyzed and classified, may be resolved into three departments or divisions—(1) The making and promulgation of laws prescribing the functions of governing agencies and regulating the legal rights and duties of the people within the jurisdiction of the government: (2) the administration of laws; and (3) the interpretation and determination of laws in cases where doubts arise as to their meaning or intention. In simple societies these three functions may be blended in one person, or one body, but in all maturely developed States they become differentiated, and divided amongst separate persons or separate bodies composing the sovereign authority as a whole. Hence arises the well-known tripartite division of government into the Legislative Department, the Executive Department, and the Judiciary Department. All constitutions which have been reduced to and expressed in the shape of written instruments, such as those of the United States, Belgium, France, Germany, and Switzerland, recognize this principle of division and distribution of power. The same distribution, indeed, is also observed in the British system of government, the Constitution of which, although it has not been reduced to the form of a single document or Act of Parliament, is as capable of being gathered from numerous Charters, Bills, Proclamations, Statutes, legal decisions, and official documents, extending from the time of King Alfred down to the reign of Queen Victoria, as the Constitutions of the countries referred to, which have been, in fact, largely constructed according to the British model.

At the time when the American Constitution was framed, Montesquieu was the great oracle of political philosophy, and he drew special attention to the tripartite division of political power as existing in England. “Contrasting the private as well as the public liberties of Englishmen with the despotism of continental Europe, he took the Constitution of England as his model, and ascribed its merits to the division of legislative, executive, and judicial functions, which he discovered in it, and to the system of checks and balances whereby its equilibrium seemed to be preserved; no general principle of politics laid such a hold on the constitution-makers and statesmen of America as the dogma that the separation of these three functions is essential to freedom.” (Bryce's Amer. Comm., vol. I., p. 26.) This tripartite classification does not necessarily imply that each of the three departments of government is independent of the others. Each of the three is endowed with a defined share in the work of government, but they are all parts of one governing machine and are exercising fractions of the aggregate of sovereign power; each acts within its respective legal sphere, but, to some extent, one may check and balance the other. Thus the legislature may exercise more or less control over the Executive. The Executive may advise, lead, or for a time

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moderate the action of the legislature, as is done in the British system, through the agency of the Cabinet. In every well-designed Constitution the Judiciary, once appointed, is almost absolutely independent of the influence of either the Executive or the Legislature; but the primary appointment of the Judges generally rests with the Executive, and for gross misconduct in office they may be removed by the Executive: in some Constitutions they may be removed by the Executive at the request of the Legislature without any particular cause assigned.

RIGHTS, PRIVILEGES, AND IMMUNITIES.—A Constitution not only deals with this partition and delimitation of governing powers, with the mode in which those powers are exercised, and with the structure of the governing organs; it generally enumerates certain cardinal rules, principles, and maxims which are intended to be the indiciae of public policy that should guide or bind the Executive the Legislature, and the Judiciary Departments. Thus Magna Charta, the Petition of Rights, and the Bill of Rights, contain declarations of rights, privileges, and immunities, which are said to be the inalienable birthright and heritage of every British subject, protecting his liberty from unlawful impairment and his property from spoliation. These declarations undoubtedly bind the British Executive and the British Judiciary; they may guide but cannot bind the British Parliament, which may amend or repeal them at any time. A similar declaration of rights has been inserted in the Federal Constitution of the United States. In a supreme constitution of a federal character, dealing as it does with a general government and with provincial governments, with States as well as with individuals, provisions are necessarily inserted for the preservation not only of individual rights, but of what are known as “State Rights,” against invasion and encroachment on the part of the general government, and for the preservation of “National Rights” against invasion and encroachment on the part of the States. In the American Constitution, as in the Constitution of the Commonwealth, these declarations bind alike the Executive, the Judiciary, and the Legislature, of each State, as well as those of the general government.

A FUNDAMENTAL LAW.—Next, the word Constitution connotes the idea of a fundamental law—a law of higher sanctity, and perhaps of greater efficacy and authority, than ordinary legislation. In all modern written Constitutions there is a tendency to establish the fundamental character of the instrument upon a firm legal basis by making the process of constitutional amendment more difficult and more complex than the process of ordinary legislation, and thus to affirm the principle that every alteration in the fundamental law is an act so solemn and momentous that it requires compliance with special formalities intended to prevent hasty and ill-advised changes, to ensure the fullest deliberation, to guard against surprises, and to protect the rights and interests of all classes of the community. A Constitution which thus makes the process of its own amendment more difficult than the process of ordinary legislation is what Professor Dicey calls a “rigid” Constitution. The degree of rigidity may vary widely; it may consist in the requirement of unusual majorities in the Legislature, or of ratification in a certain way by conventions, or by the electors, or it may involve other and more complicated processes. And even in an absolutely flexible Constitution such as that of Great Britain, where the most fundamental law can legally be altered or repealed as easily as the most trivial, the reverence for constitutional usage invests the laws which form the main fabric of the Constitution with a sanctity which makes the flexibility less absolute, in practice, than it seems.

In a unitarian or consolidated Constitution, like that of Great Britain, organic changes may be effected with greater facility and safety than in a federal Constitution such as that of the United States. In a consolidated State there may therefore be one supreme Legislature, having absolute and final jurisdiction over all matters, including the Constitution itself. But a federal Constitution deals with the conflicting views and interests of a community which is composed of a number of States, united under a general form of Government, each State having a local Constitution and local governing

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organs, as well as local rights guaranteed by the supreme Constitution. In such a system a power of amendment is usually placed not in the legislatures of the several States nor solely in the central legislature of the federal community, but in some body, more or less complex, which represents both the nation and the States.

In the case of the British Constitution, and its unitarian form of government, the British Parliament is a supreme or sovereign legislature, and could, at any time, amend or repeal any part of the Constitution, of which it is partly, if not wholly, the author and creator, including the Bill of Rights. The Federal Congress of the United States, however, is not a supreme or sovereign legislature, but is only a legislature subordinate to the supreme Constitution created by the people of the United States and exercising limited and specific powers assigned to it by that supreme Constitution. Congress cannot amend that Constitution in any way whatsoever. Majorities of two-thirds in both the Senate and the House of Representatives may suggest an amendment; but it would not become law until it were ratified by majorities of the federal electors in three-fourths of the States acting through their several legislatures or conventions. This is one of the fundamental differences between a unitarian Constitution and a Constitution of a federal character. As a practical illustration of the foregoing definition and exposition of a Constitution, the following outlines of two typical Constitutions, one Federal, the other Unitarian, are submitted:—

Outlines of the British Constitution.

Part I.

SOVEREIGNTY.—Legally vested in the British Parliament—i.e., Queen, Lords, and Commons—with a strong tendency to recognize the people represented by a majority of the electors as the body in which the ultimate political sovereignty resides; to be gathered from various Charters, Patents, Writs, Ordinances, Statutes, Acts, Proclamations, legal decisions, and established customs.


GOVERNMENT.—Powers exercised by one set of Executive, Legislative, and Judicial Departments:—

  • (1) The Executive Department.—Presided over by the Queen, acting for the most part on the advice of Ministers of State responsible to Parliament. (The Queen's title—Act of Settlement, 12 and 13 Wm. III. c. 2.)
  • (2) The Legislative Department.—Power vested theoretically in the Queen, acting on the advice and with the consent of the Lords spiritual and temporal and the Commons; practically in the Queen in Parliament. The Queen—Her part in the convening, proroguing, dissolving Parliament; in recommending legislation; her right to assent to or disallow Bills passed by the Lords and Commons. The Lords Spiritual and Temporal—The House of Lords, composed of (1) hereditary Peers, (2) Elective Peers, i.e., those who represent the peerage of Ireland and Scotland, and (3) peers of office, such as Bishops of the Church of England. Power of the House of Lords theoretically equal to that of the Commons with certain exceptions, such as control of the Executive and the alteration of Money Bills. Title of the House of Lords, immemorial customs, charters, writs, and Acts of Parliament. The House of Commons—Composed of Representatives elected by the people according to electoral laws passed from time to time. Power of the House of Commons in the initiation of legislation unrestricted, except for the constitutional principle that it may not originate a grant of money or a tax except upon receipt of a message from the Crown recommending the same. Control of Ministers. Title of the House of Commons—charters, writs, recognized and ratified by Acts of Parliament.

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  • (3) Judicial Department.—Power vested in the Queen, but exercised by Judges appointed by the Crown during good behaviour, but subject to be removed on an Address from both Houses of Parliament. Jurisdiction—to interpret the common law and the law of Parliament, but not to question validity of the latter. Security of tenure—Act of Settlement, 12 and 13 Wm. III. c. 2, and subsequent legislation.

Part III.

RIGHTS, PRIVILEGES, AND IMMUNITIES.—Contained in numerous charters, confirmations of charters, and Acts of Parliament assented to by the Crown from the earliest period of English history, including Magna Charta (1215); the Petition of Rights (1627), 3 Char. I. c. 1; the Habeas Corpus Act (1640), 16 Char. I. c. 10; the Bill of Rights (1688), 1 Wm. and Mary c. 2; and the Act of Settlement (1700), 12 and 13 Wm. III. c. 2. The Bill of Rights is of special interest as declaring that certain recited rights are “the true ancient and indubitable rights and liberties of the people to be firmly and strictly holden and observed in all times to come.”

Part IV.

COLONIES.—The Acts 18 Geo. III., c. 12, and 28 and 29 Vic. c. 63, are the charters of Colonial Independence. By the first it is promised that the British Parliament will not impose any duty, tax, or assessment whatever, payable in any part of His Majesty's colonies, provinces, plantations, in North America or in the West Indies. The latter Act is known as the Colonial Laws Validity Act, 1865, and provides that no colonial law shall be deemed to be void or inoperative on the ground of repugnancy to the law of England, unless it is repugnant to the provisions of an Imperial Act specially applicable to the colony in which such colonial law was passed.

Part V.

AMENDMENT.—No limitation upon the power of the British Parliament to alter the Constitution; it may legally be amended by the ordinary process of Legislation; but the House of Lords—the last stronghold of resistance to constitutional innovation—is under no constitutional obligation to yield to any demand of the House of Commons until the voice of that House has been confirmed by its constituents at a general election.

Outlines of the Constitution of the United States.

Part I.

SOVEREIGNTY.—Legally vested in the electors of the States, organized within the Constitution as the amending power.

Part II.

GOVERNMENT.—Two co-ordinate sets of governing organs, national and State, acting within the spheres marked out for them by the Constitution. Each set of organs is independent of the other, but both are subject to the common sovereignty:

  • (a) National Government.—Can only act within the sphere of powers granted to it by the Constitution.
    • (1) National Executive Department.—Power vested in the President, chosen under the Constitution by the electors of the States. Some executive acts require assent of Senate.
    • (2) National Legislative Department.—Power vested in Congress; House of Representatives elected by people of States in proportion to population; Senate consisting of two Senators from each State, chosen by the Legislature of the State. President has a veto, which may be overridden by a two-thirds majority of each House.

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    • (3) National Judicial Department.—Power vested in the Supreme Court of the United States, established by the Constitution, and other federal courts established by Congress under powers conferred by the Constitution.
  • (b) State Governments.—Can only act within the residuary sphere of powers which are neither prohibited to the State Governments nor exclusively given to the Federal Government. Within that sphere, the Government of each State is vested in the electors of the State organized within the Constitution of the State. Subject to the Federal Constitution and the Constitutions of the States:—
    • (1) State Executive Departments.—Power vested in State Governors appointed under State Constitutions.
    • (2) State Legislative Departments.—Power vested in State Legislatures, elected under State Constitutions.
    • (3) State Judicial Departments.—Power vested in State Courts established under State Constitutions.

Part III.

RIGHTS, PRIVILEGES, AND IMMUNITIES.—Defined by the Constitution as amended from time to time. Subject to modification by the sovereign people, but secure against Federal and State Governments.

Part IV.

AMENDMENT.—The mode of amendment by the sovereign people prescribed by the Constitution requires:—(1) Initiation by two-thirds majority in each House of Congress, or (on the demand of the Legislatures of two-thirds of the States) by a Constitutional Convention; (2) ratification by Legislatures or Conventions in three-fourths of the States. An amendment depriving any State of its equal representation in the Senate requires the consent of that State. The process of amendment is itself subject to amendment in the prescribed mode.

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2. The provisions of this Act referring to the Queen19 shall extend to Her Majesty's heirs and successors20 in the sovereignty21 of the United Kingdom.

CANADA.—The provisions of this Act referring to Her Majesty the Queen extend also to the Heirs and Successors of Her Majesty, Kings and Queens of the United Kingdom of Great Britain and Ireland.—British North America Act, 1867, sec. 2.

HISTORICAL NOTE.—The clause as originally drawn in the Sydney Convention, 1891, was taken verbatim from the Canadian clause, supra. In Committee, on Mr. Rutledge's suggestion, the words “in the sovereignty” were substituted for “Kings and Queens.” (Conv. Deb., Syd. [1891], p. 557.) As drawn at the Adelaide session, 1897, the clause ran:—“This Act shall bind the Crown and the Executive officers of the Commonwealth, and its provisions referring to Her Majesty the Queen shall extend,” &c. Mr. Higgins moved the omission of the words “and the Executive officers of the Commonwealth,” and this was agreed to. (Conv. Deb., Adel., pp. 619–20.) At the Sydney session, there was a short discussion on the words “This Act shall bind the Crown.” (Conv. Deb., Syd. [1897], pp. 225–7.) At the Melbourne session, verbal amendments were made before the first report and after the fourth report.

In England, the Crown Law officers recommended the omission of the words “This Act shall bind the Crown” (Parl. Paper, May, 1900, p. 19). In the Bill as introduced into the Imperial Parliament this course was adopted, and the clause was worded “The provisions of this Act, and of the Constitution set forth in the schedule to this Act,” etc—

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the Constitution being then placed as a “schedule” to the Bill. When the original form of clause 9 was restored in Committee, and the word “schedule” omitted, the words in italics became inapplicable; and before the third reading they were omitted.