§ 5. (General Survey, Sec. 5.) Constitutional law.

Case 5. Cooley's Constitutional Limitations, 7th edition, excerpt from chapter 1.

"A Constitution is sometimes defined as the fundamental law of a State, containing the principles upon which the government is founded, regulating the division of the sovereign powers, and directing to what persons each of these powers is to be confided, and the manner in which it is to be exercised. Perhaps an equally complete and accurate definition would be, that body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.

"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 barbarous 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.

"In American constitutional law the word Constitution is used in a restricted sense, as implying the written instrument agreed upon by the people of the Union, or of any one of the States, as the absolute rule of action. and decision for all departments and officers of the government, in respect to all the points covered by it, until it shall be changed by the authority which established it, and in opposition to which any act or regulation of any such department or officer, or even of the people themselves, will be altogether void.

"The term unconstitutional law must vary in its meaning in different States, according as the powers of sovereignty are or are not possessed by the individual or body which exercises the powers of ordinary legislation. Where the law-making department of a State is restricted in its powers by a written fundamental law, as in the American States, we understand by unconstitutional law one which, being opposed to the fundamental law, is therefore, in excess of legislative authority, and void. Indeed, the term unconstitutional law, as employed in American jurisprudence, is a misnomer, and implies a contradiction; that enactment which is opposed to the Constitution being in fact no law at all. But where, by the theory of the government, the complete sovereignty is vested in the same individual or body which enacts the ordinary laws, any law, being an exercise of power by the sovereign authority, could not be void, but if it conflicts with any existing constitutional principle it must have the effect to modify or abrogate such principle, instead of being nullified by it. This must be so in Great Britain with every law not in harmony with pre-existing constitutional principles; since, by the theory of its government, Parliament exercises sovereign authority, and

may even change the Constitution at any time, as in many instances it has done, by declaring its will to that effect. And when thus the power to control and modify the Constitution resides in the ordinary law-making power of the State, the term unconstitutional law can mean no more than this: a law which, being opposed to the settled maxims upon which the government has habitually been conducted, ought not to be, or to have been adopted. It follows, therefore, that in Great Britain, constitutional questions are for the most part to be discussed before the people or the Parliament, since the declared will of the Parliament is the final law; but in America, after a constitutional question has been passed upon by the legislature, there is generally a right of appeal to the courts when it is attempted to put the will of the legislature in force. For the will of the people, as declared in the Constitution, is the final law; and the will of the legislature is only law when it is in harmony with, or at least is not opposed to, that controlling instrument which governs the legislative body with the private citizen."

Question 5: (1) How does Cooley say that a constitution is sometimes defined? What other definition does he suggest? (2) In what qualified way does every state possess a constitution?

(3) To what sort of government is the term "constitutional government" most correctly applied?

(4) In American Constitutional law what sense is the word "constitution" used?

(5) What various meanings has the term "unconstitutional law" and what do we mean thereby in American constitutional law?

(6) How is the power of Parliament different from that of Congress in respect to constitutional law?

§ 6. (General Survey, Sec. 6.) The Federal
Constitution.

(Note: Power of Federal Government. The government of the United States is a government of delegated powers. The original states, being in fact independent political bodies,

formed the Union under an arrangement whereby they delegated to a central government sovereignty as a nation and other powers set forth in the instrument of creation, namely, the United States Constitution, reserving to themselves all power not granted away, that is to say, retaining the reserve of political power. The powers of the United States are found and found only in the United States Constitution and the amendments thereto. To ascertain whether the Federal Government has power in a particular matter we must seek the power in the Constitution, and if not there to be found, it has been reserved to the states.

The power of the Federal Government is not, however, to be narrowly construed to extend only to that which is expressly set forth in the Constitution. The power of the Federal Government under the Constitution includes the power to do all that is incidental to the powers expressly granted, and to do all that is reasonably necessary to carry the express powers into effect. This power is usually referred to as the implied power of the Federal Government. Under this so called implied power the Congress may pass any law which will serve as a means of carry ́ing into effect the powers expressly granted by the Constitution. Thus the government having extensive fiscal powers generally conferred, may charter a National Bank, although not specifically given by the Constitution any such power. (McCulloch v. Maryland, 4 Wheat. 316.) Under the Interstate Commerce Clause it has created the Interstate Commerce Commission and passed a multitude of laws governing and regulating interstate commerce.

But, notwithstanding this implication of power, it is still true that the general reserve of power is in the states, and the central government is one of delegated and limited power. The Federal Government was founded upon the assumption that the states would have the general reserve of power and nothing was to be passed over to the national government except those powers set forth in the constitution deemed to be of national rather than of local importance.

"In the maintenance of local self government on the one hand, and the national power on the other, our country has been able to endure and prosper for near a century and a half." (Taft, C. J. in Bailey v. Drexel Furniture Co., 66 L. Ed. (U. S.) —.)

(Note: Power of the Court to declare legislation unconstitutional. It was a matter of dispute in the early history of the

Federal Government whether the judicial branch of the government possessed the power to nullify the legislation of the legislative branch upon the ground that it was unconstitutional. It was conceded that the constitution was the Supreme Law of the Land, and must be followed until amended in the manner set forth in the constitution; but it was argued that Congress had the right to determine whether its own legislation was or was not in accordance with the constitution and that the judicial branch, being co-ordinate with, and not superior to, the legislative branch, could not overrule the judgment of the legislative branch. But this view did not prevail. The business of the judicial branch is to judge, and if the court has a case before it in which the legislation sought to be applied appears to be not in accord with the constitution, the Court will declare the law unconstitutional. Chief Justice Marshal in McCulloch vs. Maryland, 4 Wheat, 316, said: "Should Congress, in the execution of its powers, adopt measures which are prohibited by the Constitution, or should Congress under the pretext of executing its powers, pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land." But the Court held, nevertheless, in that case, that it would construe the Constitution liberally, and uphold all laws which by fair implication seem reasonably necessary to carry into effect the express constitutional powers.

Similarly, a state law must be constitutional under the Federal and State constitution.)

§7. (General Survey, Sec. 7.) The state constitutions.

(Note: Nature of State constitutions. The State constitutions are the fundamental laws of the various states, by which the state governments are organized, and the powers of the law making body, and the other departments and officers restricted. The state constitution is therefore a restriction upon power, rather than a delegation of power (as the federal constitution is). The state may amend its constitution as it sees fit. Obviously the state cannot in its constitution take on any powers that have been granted away to the Federal Government and cannot transcend or abate the Federal powers in any respect.)