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Constitutional Law

Constitutional Law

The articles under this heading deal with the major substantive concerns of American constitutional law. For broader aspects of these topics seeJudicial process; Judiciary; Public law. A guide to related articles appears underLaw.

I. IntroductionC. Herman Pritchett

BIBLIOGRAPHY

II. Distribution of PowersJohn P. Roche

BIBLIOGRAPHY

III. Civil LibertiesRobert G. McCloskey

BIBLIOGRAPHY

IV. Civil RightsMilton R. Konvitz

BIBLIOGRAPHY

I INTRODUCTION

Constitutional law is law derived from, related to, or interpretive of a constitution. The term may in fact be used synonymously with constitution, since the function of a constitution is to provide the basic law for a governmental regime. But it is more common, at least in governments with written constitutions, for the term constitution to refer to the actual text of the basic document, while constitutional law connotes the constitution as interpreted and applied by the organs of government and as elaborated and rationalized by scholarly commentators.

Every regime must have an organizational framework, an agreed division of responsibilities among public instrumentalities, and a system of definitions of individual rights and status in the community. In a traditional society these arrangements and understandings are established by custom, but in more modern societies they are subject, through a process of conscious choice, to determination or revision by the policy-making institutions of government. These determinations have, since the adoption of the American and French constitutions toward the close of the eighteenth century, generally been codified in a comprehensive written document that has status superior to ordinary statute law and that can be amended only by a special legislative procedure.

In England, however, it has proved possible to proceed on into the twentieth century without any systematic codification of the rules of the political system. Constitutional law in England consequently cannot be clearly distinguished from other public law, since it has no superior legal authority; and any constitutional practice, even the most fundamental, can be overridden or revised by act of Parliament. A treatise on English constitutional law is simply a treatment of all the written and unwritten law generally considered essential to the operation of the governmental system.

Where, as is now generally the case, a written constitutional instrument is in existence, constitutional law is a formal category of law defined by the scope and provisions of the document. Any matter covered in the constitution, even arrangements of slight general importance, takes on the stature of constitutional law. Conversely, matters not covered in the constitution, no matter how important—such as political parties not being included in the U.S. constitution—are not subjects of constitutional law.

Responsibility for interpretation

Where a written constitution provides the foundation for a political regime, the principles of constitutional law for that regime are derived by interpretation of the language of the document; these interpretations are then applied in making governmental decisions and settling constitutional controversies. Some constitutional language is so specific that little interpretation is required, as, for example, the provision that the U.S. president “shall hold his office during the term of four years.” But most constitutional language leaves room for varying views as to its meaning, and such provisions as “due process of law” or “freedom of speech” or “unreasonable searches and seizures” can never be applied without making a choice among alternative interpretations.

Whose responsibility is it to interpret a written constitution and authoritatively to declare constitutional law? An important part of this function falls to the executive branch, which must inevitably and continually interpret the constitution in making decisions on the use of executive power. In 1841 a U.S. president died in office for the first time. The language of the constitution left it unclear whether it was the “office,” or only the “powers and duties” of the office which devolved on the vice-president. This important constitutional question had to be determined by the then vice-president, John Tyler, who, after some initial hesitation, decided that he was actually president and not simply vice-president acting as president. This view was quickly accepted as the constitutional law on presidential succession.

Congress also must continuously construe the constitution as a guide to action. For example, the constitution authorizes the president to make treaties, “by and with the advice and consent of the Senate.” George Washington assumed that this provision meant that he should sit down with the senators and get their advice on treaties while they were being negotiated, but when he went to the Senate for this purpose, the senators preferred not to discuss the matter in his presence and voted to refer it to a committee. Washington had no choice but to withdraw, yielding to the Senate's interpretation of “advice and consent,” and no subsequent president has ever sought to repeat this tactic.

These two instances indicate how it is possible for the executive and the legislature to make binding interpretations of their own respective powers under a constitution. In fact, it was argued by many during the early years of the American republic that each branch of government should be the authoritative interpreter of all those provisions dealing with its own status and powers. However, this tripartite theory of constitutional interpretation was strongly challenged by Justice Marshall in the 1803 case of Marbury v. Madison (1 Cranch 137), where he asserted the primacy of judicial interpretation of the constitution.

In the Marbury case the Supreme Court declined to enforce a statute duly enacted by Congress because, as Marshall interpreted the act, it was contrary to the constitution. The judicial power to declare acts of Congress unconstitutional is not explicitly stated in the constitution, and the argument as to whether the drafters intended the Court to have such power has never been entirely settled. Some of the major battles of American politics have resulted from legislative or executive resistance to the Court's interpretations, and notable efforts have been made to deny the supremacy of judicial views on constitutional interpretation. Both Andrew Jackson in his veto of the Bank Bill in 1832 and Abraham Lincoln in his first inaugural address took this position.

In spite of such opposition, the Supreme Court's qualifications to act as pre-eminent interpreter of the constitution have been generally accepted. The Court has minimized resistance to its role by adopting rules of self-restraint, which keep it from passing on certain constitutional questions of a “political” nature, and has generally been deferential toward the constitutional interpretations by the president and Congress. It has seldom asserted a constitutional position that challenged a dominant popular opinion, although there have been such “self-inflicted wounds” as the Dred Scott decision in 1857 and the invalidation of the income tax in 1895.

During the twentieth century the Court's most serious miscalculations on constitutional issues came in 1935 and 1936, when it declared a number of New Deal statutes unconstitutional. President Roosevelt was unable to get through Congress legislation authorizing him to appoint additional justices who would support the New Deal; but in 1937 the Court itself reversed its position, thus terminating the dispute. Two decades later the Court's constitutional views again became the center of controversy, primarily on the issue of racial segregation in the public schools, but also on certain national security issues in 1957, on legislative apportionment in 1962, and on the problem of religion in the public schools in 1962 and 1963.

The enormous prestige of the United States Supreme Court has helped to popularize judicial review of legislation and judicial supremacy in constitutional interpretation. Prior to World War II it was primarily in federal systems within the British Commonwealth—notably Canada and Australia— that courts with constitutional responsibilities somewhat comparable to the U.S. Supreme Court were found. However, following World War II constitutional courts were established in West Germany, Italy, India, and elsewhere.

Principles of interpretation

Wherever the process of constitutional interpretation goes on, it must be guided by some more or less articulate theory about the extraction of meaning from constitutional language. The interpreter cannot merely insist that the constitution means whatever he wants it to mean, or at least he cannot admit such an approach to the interpretative process. For the essence of constitutional purpose is to establish a degree of certainty, to impose limitations that will affect all alike, and to give effect to rules that are external to the value system of the interpreter. Various approaches to the establishment of stable constitutional meanings have been proposed.

First, it may be contended that the constitution should mean what its framers meant it to mean. In the United States it is a rare constitutional debate in which someone does not appeal to “the intention of the framers.” Thus, when the question is raised whether reciting prayers in public schools is an “establishment of religion,” it will be argued by some that this depends upon what the members of the first Congress meant by this phrase when they were drafting the first amendment. In the case of some provisions, the purpose of the drafters may seem reasonably clear from the language of the document or the historical data. But generally this is not true. Constitutional language is always the product of group effort and compromise and may be deliberately chosen to bridge over differences of opinion. The intentions involved are the intentions of many individuals who participated to a greater or lesser degree and at various stages in the process of constitutional draftsmanship and subsequent ratification. The proceedings of the Constitutional Convention are known largely through the incomplete notes taken by James Madison. Some of the men who participated in drafting the constitution were in wide disagreement about its intention within a few years.

Because individual and group intentions are difficult to determine, a second theory of constitutional interpretation proposes concentration on word meanings. As Justice Oliver Wendell Holmes put it, “We ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used” ([1885–1918] 1952, p. 204). This method employs somewhat narrower lexicographic skills as compared with the social historicism on which the first method relies. It is more rigorously confined by the document itself and more closely related to the processes by which the written instruments of private law are construed.

An alternative to these two basically historical methods of determining constitutional meaning is the approach of logical analysis, which was heavily used by Chief Justice Marshall in his great decisions. In Marbury v. Madison, for example, Marshall cites no judicial decisions to support his arguments and, although referring to “original intention,” makes no effort to quote contemporaneous evidence or opinion. His argument is primarily an exercise in logic. “It seems only necessary to recognize certain principles,” he says, “supposed to have been long and well established, to decide [the case].” The major principle is that the constitution is the supreme law of the land. The Supreme Court has taken an oath to uphold the constitution. The conclusion logically follows that when an act of Congress conflicts with the superior law, the Supreme Court cannot enforce it, but must declare it null and void.

This position has been so long accepted that the logic supporting it may seem unassailable. But it is equally logical to argue that the constitution is the supreme law of the land, and since the president has taken an oath to support the constitution he cannot enforce a Supreme Court decision that conflicts with the constitution, but must declare it null and void. The problem is simply not one to which logic can guarantee a correct answer. The limitations on the contribution of logic can be made clearer by stating a part of Marshall's argument as a syllogism.

Major premise: A law repugnant to the constitution is void.

Minor premise: This law is repugnant to the constitution.

Conclusion: This law is void.

Assuming the validity of the major premise, the soundness of the conclusion depends upon whether the minor premise is factually true. But logic cannot tell us whether a particular law is repugnant to the constitution. That is a matter of informed opinion and judgment. Justice Holmes, in one of his most famous passages from The Common Law ([1881] 1963, p. 5) disparaged the logical approach: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.”

It seems clear that no one rule of constitutional interpretation can be asserted to be the proper or sole approach to constitutional understanding. A constitution is more a political than a legal document. Consequently, all of the factors that go into the formation of divergent political preferences will also be operative in the minds of constitutional interpreters, be they executives, legislators, or judges. How a constitution will be read depends in large part upon the men who are doing the reading and how the world looks to them. The constitutional system is not separate from the political system, but a necessary part of it, performing the vital function of giving order and structure to the processes of policy formation. Holmes put the conception of a “living” constitution into eloquent language when he wrote:

… when we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago. (Missouri v. Holland, 252 U.S. 416, 1920)

Stability and change

The central problem in the development of a system of constitutional law is, as Holmes suggests, to recognize the need for adapting and changing to meet new circumstances, while preserving the basic values of the constitutional system. In a world growing constantly more crowded and complex with new ideas, new technical developments, new ways of living, new standards of social responsibility, and new world crises, the pressure on constitutional rules established to meet the different conditions of an earlier day will inevitably force their revision or abandonment.

The most obvious method of adapting constitutional law to changed conditions is to replace the old constitution with a new one. When an existing political system is overthrown, the new holders of power customarily seek to organize and legitimize their regime by the adoption of a new constitution. It is an index to the political instability of France that it has had 15 constitutions since the Revolution. American states also adopt new constitutions often, but not because of political upheaval. State constitutions tend to be very long and detailed, regulating the minutiae of the state and local governmental system, and can become obsolete quite rapidly. Periodically, therefore, states find it more expedient to draft a new constitution than to attempt to patch up the old one.

More commonly, the process of constitutional adaptation is achieved by amendment, interpretation, and custom. The drafters of the U.S. constitution were the first to recognize the need for making provision within the document itself for its own revision. The presence of the amending clause was one of the factors that led Thomas Jefferson, originally inclined to oppose the constitution, to decide in its favor.

The method of amending the constitution is usually more difficult than the passage of normal legislation, although this is not true in some countries, such as New Zealand and the Republic of South Africa. The arrangements for amending the U.S. constitution, requiring approval by two-thirds of each house of Congress and three-fourths of the states, have on occasion been criticized as too difficult. Following the Civil War amendments (thirteenth, fourteenth, and fifteenth), there was a period of more than forty years during which the constitution appeared unamendable, in spite of strong pressure for revision to meet the problems of a rapidly expanding economy. But between 1913 and 1933 six amendments were added to the constitution, and the experience with the eighteenth (prohibition) amendment showed that it was even possible for a small but dedicated pressure group to exploit the amending machinery.

Article 89 of the French constitution provides for amendment of the constitution by vote of parliament. In 1962, however, President de Gaulle ignored this method and submitted to a popular referendum an amendment providing for election of the president by popular vote instead of by limited suffrage. In Australia proposed amendments, after passage by each house of Parliament, must be approved by a popular referendum throughout Australia and also by a majority vote in four of the six states. The Canadian constitution (British North America Act of 1867) contains no provision for its own amendment; consequently, constitutional change has required recourse to the original source of the constitution, the British Parliament.

The amending power has been less important in the development of the U.S. constitution than has the previously discussed process of interpretation. The document, drafted in 1787, could scarcely have met the needs of a world power in the twentieth century unless it had been construed with some flexibility. It was one of John Marshall's greatest achievements that he saw the need for a broad construction of the constitution. “We must never forget, that it is a constitution we are expounding,” he said, one that is “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs” (McCulloch v. Maryland, 4 Wheaton 316, 1819).

Revising a constitution by interpretation does create both theoretical and practical problems. Justice Frankfurter once suggested that “nothing new can be put into the Constitution except through the amendatory process. Nothing old can be taken out without the same process” (Ullmann v. United States, 350 U.S. 422, 1956). It must be presumed that he was using this rather extreme method of warning that if a constitution is to fulfill its function of acting as a stabilizing and controlling influence in a political system, the interpretations given to it must be maintained with some measure of continuity, and the agencies that interpret and apply the constitution must feel under some compulsion to accept the views announced by their predecessors.

Regard for precedent is, of course, one of the foundation stones of legal systems generally, applicable in both constitutional and statutory interpretation. However, the principle of stare decisis, necessary as it is in the settlement of normal legal controversies, presents unusual difficulties when applied to constitutional meanings. If a constitutional interpretation, once announced, can be modified only by constitutional amendment, an impossible burden is thrown on the amending machinery. The U.S. Supreme Court has, therefore, on occasion overruled its earlier decisions. One of the most noteworthy instances of the overruling of a prior constitutional position occurred in 1954 in Brown v. Board of Education (347 U.S. 483). In an 1896 decision the Supreme Court had held that segregated facilities for Negroes were not a violation of the equal protection clause of the fourteenth amendment, provided they were the “equal” of the facilities provided for white persons. But when the Court had to decide in 1954 whether racial segregation was permissible in the public schools, it held unanimously that “we cannot turn the clock back … to 1896. … We must consider public education in the light of its full development and its present place in American life throughout the Nation.” Such consideration convinced the Court that the rule of “separate but equal” was no longer compatible with the concept of equal protection under the laws, and consequently it was abandoned.

The study of constitutional law

Traditionally, students of constitutional law have concerned themselves with collecting and analyzing constitutional interpretations and organizing and rationalizing them into a coherent system. Some constitutional commentators gain such prestige by the force of their reasoning that they themselves become authoritative sources of constitutional law. Thomas Cooley's A Treatise on Constitutional Limitations (1868), which appeared in the same year the fourteenth amendment was adopted, so effectively argued for the doctrine of implied constitutional limitation on the powers of American states that it was a powerful force toward the stricter judicial review of state legislative action that characterized the latter part of the nineteenth century.

In the twentieth century the general constitutional commentary has tended to give way to treatises on the constitutional status of particular institutions, such as Corwin's The President: Office and Powers (1940) or Jennings' Parliament (1940). There have also been frequent analyses of the application and interpretation of specific constitutional provisions, such as Chafee's study of the first amendment in Free Speech in the United States (1941). Constitutional law has been taught in U.S. colleges and law schools almost entirely by use of Supreme Court decisions collected in casebooks, reflecting the degree to which constitutional interpretation is monopolized by the courts.

Behavioral trends in the social sciences have had a significant impact on the study of constitutional law. As early as 1913, Charles Beard argued that economic advantage had motivated the framers of the constitution. Later, prominent political scientists such as Corwin and Robert Cushman, biographers of Supreme Court justices such as Swisher (1930) and Mason (1956), and the school of legal realists headed by Jerome Frank (1930) all emphasized the influence of judicial personality on constitutional interpretation. Finally, in the 1950s, judicial behavior, particularly the decision making of the Supreme Court, began to be subjected to study through a whole armory of sociological and psychological tools, including voting bloc analysis, small group theory, Guttman scaling, vector analysis, and game theory (Schubert 1963).

C. Herman Pritchett

[See alsoPresidential government.]

BIBLIOGRAPHY

Anson, William R. (1886–1892) 1922–1935 The Law and Custom of the Constitution. 2 vols., 5th ed. Oxford: Clarendon. → Volume 1: Parliament. Volume 2: The Crown.

Beard, Charles A. (1913) 1961 An Economic Interpretation of the Constitution of the United States. New York: Macmillan.

Chafee, Zechariah, Jr. 1941 Free Speech in the United States. Cambridge, Mass.: Harvard Univ. Press. → Supersedes Chafee's Freedom of Speech, 1920.

Cooley, Thomas M. (1868) 1927 A Treatise on Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union. 2 vols., 8th ed. Boston: Little.

Corwin, Edward S. (1928–1929) 1959 The “Higher Law” Background of American Constitutional Law. Ithaca, N.Y.: Cornell Univ. Press. → First published in the Harvard Law Review.

Corwin, Edward S. (1940) 1957 The President: Office and Powers. 4th rev. ed. New York Univ. Press.

Dicey, Albert V. (1885) 1961 Introduction to the Study of the Law of the Constitution. 10th ed. With an Introduction by E. C. S. Wade. London: Macmillan; New York: St. Martins. → First published as Lectures Introductory to the Study of the Law of the Constitution.

Douglas, William O. 1956 We the Judges: Studies in American and Indian Constitutional Law From Marshall to Mukherjea. New York: Doubleday.

Frank, Jerome (1930) 1949 Law and the Modern Mind. New York: Coward-McCann.

Freund, PAUL A. 1961 The Supreme Court of the United States: Its Business, Purposes, and Performance. Cleveland: World.

Holmes, Oliver Wendell (1881) 1963 The Common Law. Cambridge, Mass.: Harvard Univ. Press.

Holmes, Oliver Wendell (1885–1918) 1952 Collected Legal Papers. Edited by Harold J. Laski. New York: Smith.

Jennings, William Ivor (1940) 1957 Parliament. 2d ed. Cambridge Univ. Press.

McWhinney, Edward (1956) 1960 Judicial Review in the English-speaking World. 2d ed. Univ. of Toronto Press.

Mason, Alpheus T. 1956 Harlan Fiske Stone: Pillar of the Law. New York: Viking.

Murphy, Walter F. 1962 Congress and the Court: A Case Study in the American Political Process. Univ. of Chicago Press.

Pritchett, C. Herman (1948) 1963 The Roosevelt Court: A Study in Judicial Politics and Values, 1937–1947. New York: Octagon Books.

Pritchett, C. Herman 1959 The American Constitution. New York: McGraw-Hill.

Schubert, Glendon (editor) 1963 Judicial Decisionmaking. International Yearbook of Political Behavior Research, Vol. 4. New York: Free Press.

Schubert, Glendon (editor) 1964 Judicial Behavior: A Reader in Theory and Research. Chicago: Rand McNally.

Story, Joseph (1833) 1891 Commentaries on the Constitution of the United States. 2 vols., 5th ed. Boston: Little.

Swisher, Carl B. (1930) 1963 Stephen J. Field: Craftsman of the Law. Hamden, Conn.: Shoe String Press.

Warren, Charles (1923) 1937 The Supreme Court in United States History. 2 vols., rev. ed. Boston: Little.

II DISTRIBUTION OF POWERS

From the beginnings of political speculation, much time and theoretical effort have been assigned to the demarcation and definition of jurisdictions between competing elites within various societies. While the bases of jurisdiction have shifted over the centuries, one can hear in contemporary Israel echoes of Old Testament disputes between kings and prophets, and in contemporary America the rhetoric of states' rights has archetypal resemblances to the polemical literature of the early modern struggle between royal centralists and feudal autonomists. And although the external form of modern disputes is radically different from earlier jurisdictional disputes, the key issue has not altered in two thousand years, namely, where does the final jurisdiction to define jurisdictions rest?

This issue has always been, and remains today, the crux of the matter; in the vocabulary of modern politics it is known, of course, as the question of sovereignty. Even the most ultramontane pope never denied the existence of the imperium, the emperor's sector of jurisdiction. Nor did the most ambitious of the Holy Roman emperors ever assert that the sacerdotium, the ecclesiastical jurisdiction, was nonexistent. But a struggle raged for centuries that, although seemingly centered on the scope of the respective jurisdictions, was in fact directed to the antecedent problem of ultimate determination of the appropriate forum for settlement of jurisdictional disputes. Archbishop Thomas a Becket's argument in his confrontation with Henry ii in 1164 over the question of the criminous clerk (Pollock & Maitland [1895] 1952, vol. 1, pp. 447–457) was thus at base analogous to the logic of the Virginia and Kentucky resolutions of 1798–1799; like the archbishop, Thomas Jefferson and James Madison denied their opponents the right to define their own jurisdictions.

Every political community larger than the Greek polis has been faced with the problem of distributing power, at least in functional terms. Subgovernments—provinces, exarchates, shires, communes, etc.—have been established for purposes of administrative convenience. Other varieties of subgovernment have originated from more complex origins, for example, Huguenot autonomy in France as a consequence of the Edict of Nantes, Scottish privileges under the Act of Union with England, Turkish communal rights as stipulated in the Cypriot constitution. In this context, what problems arise do so as a result of ambiguity in the relationship of the peripheral units to the center. When sovereignty, i.e., the final power to define jurisdictions, clearly resides in the center, we have what is commonly called a “unitary” system. In France, for example, the authority of départements, arrondissements, and communes—the units of subgovernment—is clearly subject to determination by the central government. This does not prevent occasional conflicts: communist-dominated communes from time to time invoked the wrath of the minister of the interior by banning hydrogen bombs from their territory, passing resolutions against the Algerian war, or renaming streets after communist heroes, but the results contributed more in the way of publicity than jurisprudence. The offending local council, in such instances, is simply dissolved by order of the central government.

At the other end of the spectrum we find the confederation, which is characterized by the fact that the powers of the central government are subject to definition by the peripheral units. A classic instance of this type of government was the United States under the Articles of Confederation; a modern example is Switzerland, where residual power still—in theory if not always in practice—rests with the component cantons.

Between these two polar positions can be found a huge variety of intermediate forms of which the most significant for our purpose is American federalism. For almost two centuries political theorists have been attempting to define “federalism,” and have had uniformly disastrous results because in analytical terms federalism is an institutionalized technique of question begging. It is, to put the matter differently, an effort to exorcise sovereignty from the political sector. Since definition is therefore understandably elusive, we shall have to settle for a description drawn from K. C. Wheare, which suggests that federalism is a system in which two levels of government operate within the same geographical limits and neither has the power to destroy the other. [SeeFederalism.]

However, before turning to a historical examination of the distribution of powers between the American national government and the states, it would be advantageous to define the other major dimension of the distribution of power: the relationship of various agencies of government to one another—or, in the American context, the issue of the separation of powers within the national government. Again, the problem is one that has been canvassed since the time of Aristotle (Politics 1298a40), although the form that the “separation of powers” took among political theorists through the eighteenth century was almost totally irrelevant to the American innovation. From Polybius and Cicero through Montesquieu, the “separation of powers” involved the allocation of governmental functions to orders of the realm or to estates, with the ideal result of a mixed government or “polity.” Thus, Thomas Aquinas (Summa theologica Quaestio cv), discussing the “right ordering of power in a principality,” argued that the best form of constitution incorporated a “judicious admixture of the kingdom … of aristocracy … and of democracy.”

This was the essence of medieval constitutionalism—the conciliar movement, indeed, attempted with ephemeral success symbolized in the Frequens decree, issued in 1417 by the Council of Constance, to apply this formula to the government of the church—and it provided the foundation for Montesquieu's famous chapter in The Spirit of the Laws (1748): “On the Constitution of England.” To state the point differently, the tripartite division of the United States constitution was not intended to balance the authority of the “one, the few, and the many”; it was a functional differentiation between governmental organs. John Locke's notion of the “separation of powers” was founded on another premise, but one equally irrelevant to American constitutional law. It is true that Locke identified a threefold division of powers (”The Second Treatise of Government” 1690), but he never asserted the equivalence of his three branches: his “executive” was a thoroughly dependent figure (§152) and, so far as domestic jurisdiction was concerned, was little more than an agent of the “supreme” legislative power (§149). And his third division, the “federative,” was indeed given wide authority and prerogative—but only for the purpose of conducting foreign relations (§147). The judiciary was attached to the executive.

What then are the origins of the American doctrine of the '”separation of powers”? What did this doctrine involve in practice? By what means and to what degree has it been incorporated in American constitutional law? These are the issues that will concern us in the last section of this analysis. First, however, we shall examine the division of powers in the American federal system, that is, the relationship between the national government and the states.

The division of powers

The American federal system has been widely acclaimed as a great, even original, contribution to political science, and it has provided the model for many subsequent governments. Federalism has always appealed to spokesmen for vested minority interests—whether religious, ethnic, or economic— who are seeking institutional guarantees against the power of a majority (Riker 1964). Nowhere has the connection between the integrity of the peripheral jurisdiction, i.e., the states, and the privileges and property of a national minority— slaveholders—been expressed more cogently than in John C. Calhoun's A Disquisition on Government (1851). Today we can discern variations on the Calhoun theme in the rhetoric of the Cypriot Turks, the French Canadians, the Ceylonese Tamils, the Fijis (outnumbered on their ancestral islands by Indians), the Nigerian Yoruba—to name only a few instances.

The theory that underpins this adulation is that federalism provides a viable framework for the reconciliation of majority power and minority rights. In terms of the distribution of power, the model rests on two assumptions: first, the central government has a plenary jurisdiction over certain sectors of policy making; second, certain other sectors of decision making are reserved in equally plenary fashion to the peripheral units (states, provinces, ethnic or religious communities). Obviously, such a system requires a written constitution, and for our purposes it is irrelevant whether residual power remains with the peripheral units (for example, U.S. constitution, article x of the bill of rights) or the center (for example, Canada under the provisions of the British North America Act of 1867).

In principle, then, an impenetrable wall is built between the jurisdiction of the center and the jurisdiction of the peripheral units. The nation as a whole exercises the necessary sovereignty to hold its place in the international community, while within the society the rights of minorities are protected from “nationalization.” The character of the minorities may vary widely; in the United States— as in Australia—geographical prescription served as the justification for the establishment of the peripheral units: the previously self-governing units were integrated as the operating components of federalism. In Canada and the Union of South Africa, geography mixed with ethnic considerations (the French in Quebec, the Afrikaners in the Transvaal and Orange River Colony) supplied the rationale.

It has been suggested (McLaughlin 1932) that when the framers of the United States constitution met in Philadelphia in 1787, they found the theoretical and practical arguments for federalism overwhelming, largely as an outgrowth of their colonial experience. In their struggle with the British over the status of the colonies, American spokesmen developed a wide-ranging theory of American rights. However, it is hard to assert that the colonial experience provided a formula for the new federal experiment; on the contrary, it supplied full support for precisely the form of association that the Constitutional Convention destroyed: the Articles of Confederation. The essence of the colonial position vis-à-vis the British was that the Americans had the right to define the jurisdiction of king and parliament, i.e., the peripheral units defined the authority of the center, the very principle that later was incorporated into the Articles of Confederation. Curiously, then, when the framers set to work to limit the authority of the states (and the caprice of “Rogues Island”), the arguments they utilized were drawn from the British, not the American, arsenal. They were in search of sovereignty in the classic Hobbesian sense, and, with few exceptions, took a dim theoretical view of states' rights.

This may seem to be an eccentric interpretation, flying as it does in the face of conventional wisdom. However, it has the great merit of being solidly grounded on the proceedings in the Constitutional Convention (Roche [1952–1963] 1964, pp. 91–126), rather than on the a posteriori theoretical patina supplied by The Federalist. The views of “Publius” on the high merits of the constitution were analogous to a man's eulogies of a wife he had secretly been forced to marry: both James Madison and Alexander Hamilton had supported the establishment of a unitary system at the convention, but debates were secret and no significant record was published until after Madison's death in 1836. What had occurred at the convention was that a strong unitary system—the “Randolph Plan,” prepared by Madison—which put the states completely at the mercy of the nation, was modified into what later became known as federalism. The latter was an improvisation that only subsequently was promoted into a political theory. In practical terms, it was a compromise between the unitary convictions of the delegates and their sense of political reality; the leading opponents of the Randolph Plan endorsed its goals but argued that it would be an act of political suicide to return to their constituent states with such a radical innovation. Thus the scope of national power over the peripheral units was cut down, the sectors of national jurisdiction stipulated, and the states given equal representation in the Senate. In the course of ratification, proponents of the new government were forced to promise a bill of rights as a further safeguard to the jurisdiction of the states.

When the constitution went into operation and the newly elected officials assembled in New York, there was nothing particularly lucid about federalism. The constitution was a model of studied ambiguity at certain key points, reflecting its authors' pragmatic notion that the best way to deal with sticky problems was to turn them over to the future unclarified. The institutions of the new republic were provided for, but even here a conflict in the convention had resulted in a semantic compromise: Congress was given the power to establish an independent federal judiciary (below the Supreme Court, which was explicitly created) but left with discretion to utilize inferior state judicial machinery for national purposes if it so chose. Yet the distribution of power within the national government was a model of clarity when compared with the relationship between the latter and the states.

An early dictionary, which Sir Ernest Barker was fond of quoting, defined a cello as a big violin and a violin as a small cello. The relationship between national and state powers under the constitution was a similar exercise in logical circularity. In the body of that document there was no discussion whatever of the distribution of power between the center and the peripheral units; state objections led to the addition of the ninth and tenth amendments in 1791, but these did little more than restate the central ambiguity. Article ix announced that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” Article x provided that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In other words, the ninth and tenth amendments, like the constitution itself, ignored the crucial institutional question: How, and by whom, were jurisdictional conflicts between states and nation to be resolved? What was to be the truth-finding mechanism in this open-ended situation? The immediate answer is the United States Supreme Court, and although there is no direct evidence that the framers intended the Court to exercise this supervision over the distribution of powers (there was no recorded discussion of the problem in the Constitutional Convention), circumstantial evidence supports this contention. The Supreme Court's power to review both acts of Congress and state legislation was probably taken for granted; indeed, the notion of a written constitution containing limitations on states and nation carried with it a need for machinery of enforcement, and the Supreme Court seems to have been assigned this task sub silentio.

The constitution was hardly ten years old before the question of states' rights shook the new republic to its foundations. In a desperate effort to hold their slipping popularity, the Federalists, marshaled by Alexander Hamilton, attempted in 1798–1799 to cripple the Jeffersonians by national legislation, primarily in the Sedition Act of 1798, which was designed to muzzle the Jeffersonian press. The Jeffersonians lost the battle in Congress and then appealed to the courts to declare the Sedition Act unconstitutional as an intrusion on states' rights. The litigation never reached the Supreme Court, but at the circuit level the act was sustained as a legitimate exercise of congressional power. At this point, Jefferson and Madison realized that the rules had to be changed, that it was improper for an agency of the general government to have the right to assess the national jurisdiction, that, in Locke's phrase, “no one should be a judge in his own cause.” The result was the Virginia and Kentucky resolutions of 1798–1799, the former prepared by Madison, the latter secretly drafted by Vice-president Jefferson, which attempted to reopen the whole issue of distribution of powers. These resolutions have served ever since as the intellectual fountainhead for states' rights formulations.

Jefferson put the question concisely:

… the several States composing the United States of America, are not united on the principle of unlimited submission to their general government; but that by compact… they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force: … That the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; … but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. (Kentucky resolutions, Nov. 16, 1798)

Thus began the states' rights tradition. In characteristic American fashion, it was an ad hoc response to political peril by the losing faction in national politics; Jefferson and Madison took a very dim view indeed of the logic of the Virginia and Kentucky resolutions when the latter were employed against the embargo of 1807 by Federalist state governments in New England (Levy 1963, pp. 93–141). Moreover, in a paradoxical fashion, Jefferson and Madison were engaged in precisely the behavior they were criticizing: their concept of “compact” made the states the final judges of the extent of the powers of the general government, i.e., made the states judges in “their own cause.” Each side engaged in petitio principii by silently incorporating their conclusions in their premises: on the one hand, the centralist view was founded on the assumption that the national government was founded by “the people”; on the other, the states' rights position rested on the notion that the states as integral units of sovereignty had made a “compact.” And history was ransacked by all hands to “prove” the validity of the respective cases —with what a historian must report as inconclusive results.

But the problems of Jefferson and Madison fade into insignificance when compared with the definitional crisis that precipitated the Civil War. This is not the place to examine the constitutional turmoil over slavery except to note that the crucial question was not juridical, but moral, and was thus insoluble by legal mechanisms. If one took for granted that a Negro slave was “property,” then the injunction of the fifth amendment that no person “shall be deprived of life, liberty, or property, without due process of law” stood as a massive barrier against national regulation of the South's “peculiar institution.” If, in contrast, one assumed that a Negro slave was a “person,” then slavery constituted an unconstitutional limitation on his life and liberty. Pace Chief Justice Taney's efforts in Dred Scott v. Sanford (60 U.S. 393, 1857), one does not settle this order of problem in a court of law.

The Union victory in the Civil War gave the compact theory its coup de grace, and in State of Texas v. White (74 U.S. 700, 1869), the Supreme Court gave ideological approval to the work of Lincoln's armies. In constitutional terms, however, states' rights lived on and was from time to time extracted from the museum of antiquities as a device for limiting federal legislation deemed “radical” by a majority of the Supreme Court (see Corwin 1936; 1938; 1941). It is reasonable to argue that in the 1960s states' rights constituted no meaningful legal barrier to the exercise of national authority, and that the federal government operating in a national economy could reach any objective it wished through the exercise of the commerce power, the taxing power, or—as in the Civil Rights Act of 1964—a combination of the commerce power and the long-ignored jurisdiction provided by the fourteenth amendment.

Yet, curiously, to say this is not to assert that the United States has achieved a unitary form of government. Indeed, in net terms the substantive power of the states today is greater than it has ever been. What has occurred is a remarkable de facto distribution of power between states and nation (sometimes called “cooperative federalism”), in which the state governments exercise enormous autonomy. For many areas of public policy, for example, education, public welfare, urban renewal, road construction, federal funds are extensively provided to supplement local resources. In these areas the states are, in effect, “sovereign,” provided they do not push their autonomy too hard or attempt to assert a theoretical basis for their jurisdiction. However, if state officials try to assert final power through gerrymanders, discriminatory practices in race relations, taxation of interstate commerce, the Supreme Court tends to reaffirm the principle of national supremacy. Moreover, since the states are the effective units of political party organization they often provide political obstacles to centralization that are far more effective than their constitutional position might indicate.

In short, the United States in a highly non-theoretical fashion has developed a relationship between the center and the peripheral units built around the operating principles of de jure national supremacy and de facto local autonomy. Most of the time this relationship works extremely well on the basis of a political consensus not to clarify issues of sovereignty but, rather, to get on with the business of governance.

The separation of powers

The doctrine of the separation of powers has occupied a distinguished position in the history of American constitutionalism. In its classic formulation the doctrine had two operating principles. The first was set forth by John Adams in article xxx of the Massachusetts constitution of 1780: “In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” The second, drawn from a maxim attributed to Bracton, announced that delegata potestas non potest delegari, that delegated powers could not be further delegated, for example, that authority delegated to Congress by article I of the constitution could not be passed on by the legislature to the president.

The difficulty with this doctrine, however, is that from the outset it was honored more in the breach than in the observance. The constitution of Massachusetts, which contained Adams' absolute interdict, also gave the governor a veto over legislation that could be overridden only by a two-thirds vote of the General Court. In other words, the governor of Massachusetts exercised immense “legislative” power. Elsewhere in the same document there was a provision that a number of “executive” officers (by our definition) would be “chosen annually by joint ballot of the senators and representatives in one room.” All judicial appointments had to be approved by the Council, which was a curious hybrid of executive, legislative, and judicial powers chosen by joint ballot of the two houses. In sum, the Massachusetts paradigm of the separation of powers on close examination is a shambles of interlocking powers and overlapping jurisdictions.

Yet, if we examine Adams' handiwork rather than his rhetoric, we discover a principle of separation founded on the proposition that the executive, legislative, and judicial institutions should have autonomous constituencies. The governor was to be elected annually by the people as a whole; the legislature by geographical subdivisions of the commonwealth; and the judiciary was to hold tenure for life on good behavior. Adams was not, in other words, interested in separating powers in terms of their substantive content (executive, judicial, legislative) but divided authority among discrete agencies (governor, General Court, judiciary, Council), each of which exercised judicial, executive, and legislative jurisdictions. Conflict among these quasi-autonomous power centers, he believed, would prevent the growth of any centralized autocracy. The separation of powers, then, rested on political physics, not metaphysics.

The original Madison draft of the constitution, which served as the basis for discussion and modification at the convention, contained no trace of the separation of powers. All power was vested in a supreme legislature; the upper house was picked by the lower house; the president and judges were selected by both houses. Gradually over the summer of 1787 this centralist model was weakened, over the militant objections of Madison, Hamilton, and James Wilson, and in an ad hoc fashion the “separation of powers” (like “federalism”) emerged from the compromises. Later, in the 47th Federalist, Madison observed that “the accumulation of all powers legislative, executive and judiciary in the same hands, … may justly be pronounced the very definition of tyranny” (Hamilton et al. [1788] 1961, p. 324). Later in the same essay he adopted John Adams' operational model, noting that the separation of powers did not mean that the “departments ought to have no partial agency in, or no controul over the acts of each other. [Montesquieu's] meaning, … can amount to no more than this, that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution, are subverted” (ibid., pp. 325–326).

Historically speaking, the doctrine of the separation of powers entered American constitutionalism as a fairly simple and matter-of-fact division of the agencies of the national government rather than as a subtle effort to differentiate powers in terms of their innate characteristics. The president exercised judicial power (pardons) and legislative power (the veto); the legislature undertook executive functions (approval of appointments, treaties) and judicial functions (amnesties); and the courts to a lesser degree dabbled in executive and legislative activities. Moreover, there is no empirical evidence to suggest that the maxim about delegated power not being subject to further delegation had any standing: the statutes of the first 20 years of the republic are full of laws delegating national authority to state institutions; state courts, for instance, were given the power to naturalize aliens and to handle a number of offenses against the laws of the United States.

There were a number of disputes in the early nineteenth century that touched marginally on the doctrine of the separation of powers. President Jackson, for example, justified his employment of the veto on policy grounds (his predecessors had felt that the veto should be reserved for legislation the chief executive believed to be unconstitutional) by asserting the full autonomy of the presidency. And, of course, a similar concept of institutional independence underlay Chief Justice Marshall's exercise of judicial review over acts of Congress. But a careful search of the precedents suggests that the separation of powers, although it occupied an honored position in the polemical literature, was not articulated as a serious principle of constitutional interpretation until the 1850s, when Justice Benjamin Curtis invoked it in two leading decisions.

Denying the practice of 60 years, Curtis asserted in Cooley v. Board of Wardens of Port of Philadelphia (53 U.S. 299, 1851) that “if the States were divested of the power to legislate on [interstate and foreign commerce] by the grant of the commercial power to Congress… Congress cannot regrant, or in any manner reconvey to the States that power.” Suddenly delegata potestas non potest delegari attained constitutional status—and by ipse dixit: Curtis did not linger to justify his pronouncement. Nor did the justice stipulate the precise constitutional foundation for his views. Further reflection presumably indicated to him that a violation of the separation of powers fell afoul of the due-process clause of the fifth amendment; at least this was the thrust of his presentation in Murray's Lessee et al. v. Hoboken Land and Improvement Co. (59 U.S. 272, 1855). Ignoring Adams' model, Curtis attempted to define the separation of powers in terms of substance; embarking on an elaborate gloss on the nature of judicial authority, he rejected the time-honored operational definition of judicial power as that power exercised by judges.

It would be pointless to catalogue the subsequent instances where the separation of powers turned up as a ratio decidendi in Supreme Court litigation. What is important is to note that this doctrine became a major theoretical roadblock to the development of administrative law, regulatory commissions, and delegations of emergency authority to the president. The nub of the argument was that Congress could not delegate “legislative” or “judicial” power to administrative officers (whether located in the executive branch or in the so-called independent regulatory commissions)—a contention which, if accepted by the Court, would have destroyed the whole regulatory apparatus that developed in the wake of the industrial revolution and the growth of a national economy. An agency such as the Interstate Commerce Commission, for example, clearly fuses executive, legislative, and judicial power: it administers, it makes rules, and it engages in enforcement.

The Supreme Court, however, was seldom prepared to fortify this high ground. Instead, the justices devised various escape mechanisms from the logical chains of separation doctrine: on one hand, they found that the powers exercised by administrative bodies were not legislative and judicial, but “quasi-legislative” and “quasi-judicial” (see Rathbun v. United States, 295 U.S. 602, 1935); on the other, they held that when Congress delegated authority to various administrative instruments, this did not constitute delegation of “legislative power” if meticulous standards of administration were specified (see J. W. Hampton Co. v. U.S., 276 U.S. 394, 1928)—it was merely an implementation of legislative power (Cushman 1941). Indeed, in 1934 the leading authority on the question, Edward S. Corwin, declared the doctrine of the separation of powers moribund (1934, p. 145).

Ironically, in 1935 the corpse arose from its bed and provided the Supreme Court with the basis for striking down the Oil Code promulgated under the National Industrial Recovery Act (Panama Refining Co. v. Ryan, 293 U.S. 539, 1934) and for several other subsequent judicial forays against the evils of the New Deal. But later decisions by the “Roosevelt Court,” notably that reached in U.S. v. Rock Royal cooperative, Inc. (307 U.S. 533, 1939), seem to have put this tumultuous spirit finally to rest. The closest the Supreme Court came to a separation-of-powers ruling in the years since 1941 was in Sweezy v. New Hampshire (354 U.S. 234, 1957), when Chief Justice Warren, while denying the applicability of the separation of powers, seemed to suggest that New Hampshire had violated due process of law by delegating to its attorney general plenary authority to act as a subcommittee of the state legislature.

To conclude, the separation of powers is thus back where it began in 1789 as an abstract affirmation of the independent constitutional existence of the president, the Congress, and the Supreme Court. And the notion that delegated power can not be further delegated has been demolished by constitutional logic drawn from John Marshall: that congressional power where it exists is plenary, and that plenary jurisdiction includes the power to give power away. Limits on delegation do exist, but they are political, not constitutional, in character (Roche [1952–1963] 1964, pp. 127–161).

John P. Roche

[Directly related are the entriesFederalism; Presidential government. Other relevant material may be found inCentralization and decentralization; Delegation of powers.]

BIBLIOGRAPHY

American Assembly 1955 The Forty-eight States: Their Tasks as Policy Makers and Administrators. New York: Columbia Univ., School of Business.

Bowie, Robert R.; and Friedrich, Carl J. (editors) 1954 Studies in Federalism. Boston: Little.

Calhoun, John C. (1851) 1953 A Disquisition on Government, and Selections From the Discourse. New York: Liberal Arts Press. → Published posthumously.

Carpenter, William S. 1928 Separation of Powers in the Eighteenth Century. American Political Science Review 22:32–44.

Corwin, Edward S. 1934 The Twilight of the Supreme Court: A History of Our Constitutional Theory. New Haven: Yale Univ. Press.

Corwin, Edward S. (1936) 1962 The Commerce Power Versus States Rights. Gloucester, Mass.: Peter Smith.

Corwin, Edward S. (1938) 1957 Court Over Constitution: A Study of Judicial Review as an Instrument of Popular Government. Gloucester, Mass.: Peter Smith.

Corwin, Edward S. (1941) 1946 Constitutional Revolution, Ltd. Claremont, Calif.: Pomona College.

Cushman, Robert E. 1941 The Independent Regulatory Commissions. New York: Oxford Univ. Press.

Hamilton, Alexander; Madison, James; and Jay, John (1788) 1961 The Federalist. Edited with introduction and notes by Jacob E. Cooke. Middletown, Conn.: Wesley an Univ, Press.

Levy, Leonard W. 1963 Jefferson and Civil Liberties: The Darker Side. Cambridge, Mass.: Harvard Univ. Press.

Locke, John (1690) 1964 The Second Treatise of Government: An Essay Concerning the True Original, Extent, and End of Civil Government. Pages 283–446 in John Locke, Two Treatises of Government. Cambridge Univ. Press.

McLaughlin, Andrew C, 1932 Foundations of American Constitutionalism. New York Univ. Press. → A paperback edition was published in 1961 by Fawcett.

Macmahon, Arthur W, (editor) (1955) 1962 Federalism: Mature and Emergent. New York: Russell.

McWhinney, Edward 1962 Comparative Federalism: States' Rights and National Power. Univ. of Toronto Press.

Montesquieu, Charles L. (1748) 1962 The Spirit of the Laws. 2 vols. New York: Hafner. → First published in French.

Pollock, Frederick; and Maitland, Frederic W. (1895) 1952 The History of English Law Before the Time of Edward I. 2 vols., 2d ed. Boston: Little.

Riker, William H. 1964 Federalism: Origin, Operation, Significance. Boston: Little.

Roche, John P. (1952–1963) 1964 Shadow and Substance: Essays on the Theory and Structure of Politics. New York: Macmillan.

Sharp, Malcolm P. 1935 The Classical American Doctrine of “the Separation of Powers.” University of Chicago Law Review 2:385–436.

Wheare, Kenneth C. (1946) 1964 Federal Government. 4th ed. New York: Oxford Univ. Press.

Wright, Benjamin F. 1933 Origins of the Separation of Powers in America. Economica 13:169–185.

III CIVIL LIBERTIES

”Civil liberties,” as commonly used, is not a technical, precise term but a loose one denoting the personal rights and freedoms that are—or ought to be—respected by government. The phrase is not quite so broad as “liberty.” It does not apply to the freedom of Robinson Crusoe on his island, where there was no government; it does not embrace those areas of private option where the law can play no part, as when a man freely chooses to be a fool, or a gentleman, or a knave; nor can the term be used very meaningfully in connection with such a concept as the “right of revolution,” which is by nature a nonlegal privilege. But in its broadest usage the term is applicable to all those many claims of right that involve an actual or potential legal nexus between the individual and government. However, lately, especially in the United States, there has been some tendency to single out “civil rights” (the protection of minorities) as a separate category and to use “civil liberties” to describe all other claims of personal right. The distinction is not entirely stable, but it has the merit of subdividing an almost impossibly multifarious subject, and in the discussion that follows “civil liberties” is used in this somewhat narrower sense.

Even within these defined limitations the subject is very extensive, and further problems of definition and classification remain. It is evident that civil liberty can be thought of either negatively, as the individual's right not to have something done to him, or positively, as his right to have something done for him—for example, as the right against state interference with the publication of a political pamphlet or as the right to be provided with the facilities for publishing it. The negative category is the traditional one, and it will command the lion's share of attention in this article. But the truism that underlies the idea of positive liberty should not be overlooked: the freedom to read is meaningless if no books are available. Negative liberties can themselves be further subdivided into rights against interference by government and rights against interference by private individuals or groups. Again the former category is the more traditional, but again the less orthodox view merits a word by way of emphasis. In order to be really free to speak, a street-corner orator may need not only the assurance that the police will leave him alone but also the assurance that they will protect him from the angry reactions of his audience, that the state will “hinder hindrances” to his freedom (see Table 1).

Rights against government are sometimes still further divided into three types: political rights (those bearing on the political process, such as the right to vote or to engage in political controversy), economic rights (such as entrepreneurial freedom or the right to practice a profession), and private rights (which is a catch-all term meant to cover all rights that are neither political nor economic). Obviously these are imperfect categories, since they are not always mutually exclusive (is freedom of artistic expression a private right, or can it be said to bear indirectly on the political process?), but they do represent distinctions that have been drawn in practice and in the literature, and they have, therefore, a loose pragmatic value.

Finally, each of these three classes of rights against government subsumes two kinds of rights, the “substantive” and the “procedural.” The substantive civil liberties are those regarded, in some degree, as ends in themselves; procedural rights are those having to do with the way in which government must proceed in dealing with substantive liberties.

Rise of the modern concept

Some concept of civil liberty can be traced far back into European history. Athenians of the age of Pericles gloried in their freedom of discussion and in their right to participate in public decisions. In the Middle Ages the feudal order rested heavily on the idea of legal rights that even the greatest lord was bound to respect, always in theory and often in fact. The barons who wrung the Magna Charta from King John were not, as they saw it, claiming new privileges but demanding that traditional immunities be reconfirmed. Nevertheless, the modern concept, although related to these older forms, is different enough to be regarded as a new species. In the Greek city-state freedom was a matter not so much of private right as of public good: the individual's liberty was instrumental to and defined by the welfare of the city. And in both the Greek and the medieval understanding men held their rights by virtue of their status rather than by virtue of their manhood. The freedom of

the Greek citizen did not extend to noncitizens, and the feudal vassal enjoyed the rights associated with his rank and order and was obliged, of course, to perform reciprocal duties. The dominant modern idea acknowledges a realm of personal value that is a good in itself, quite apart from the welfare of the community, and with some exceptions it assumes that rights accrue to men because they are men and not because of their status or their performance.

This idea, indeed, also finds some antecedents in premodern times; it smacks of the viewpoint that penetrated Roman law by way of the Stoics and Cicero. But in modern history the idea was given a new and irresistible thrust by the Reformation, which fostered a belief in individualism, and by the rise of capitalism, which provided that belief with the indispensable support of the nascent bourgeoisie. At various times since the seventeenth century, historical forces have emphasized one or another of the classes of civil liberties described in the opening paragraphs above. At first the main thrust was for freedom from the private power of the nobles and others who monopolized trade and restrained its development; this antifeudal movement supported a strengthened monarchy and a unified nation-state. Then, as the stronger monarch himself became a threat, the partisans of freedom sought to curb the state authority he embodied, first by demanding that his agents, judicial and administrative, respect certain procedural limitations when enforcing his will, then by claiming political rights that challenged his monopoly of state powers. The latter movement gathered force in the seventeenth and eighteenth centuries and reached a climax in the American and French revolutions. Its full implications have not been realized even to the present day, but under its impetus governmental power in western Europe and in North America tended gradually to devolve from the monarch to an oligarchy and finally to the majority of the populace. As this development proceeded it became apparent that political rights, although vital, were not enough: the majority, like the monarch, might use state power for good or ill. One result of this realization was a re-emphasis of substantive rights, a re-emphasis that began in the nineteenth century with an increased demand for economic freedom and shifted in the twentieth century to a new concern for other rights against government. This shift was accelerated by the spectacle of the “totalitarian” systems that arose in Europe after World War I. Another result was the development of the concept of positive liberty— “freedom for” rather than “freedom from”—which in some modern systems is regarded as a supplement to, and in others as a substitute for, the negative view of civil liberty.

Problems of conflicting liberties

Although, as has been said, different concepts of civil liberty have been emphasized at different times in the Western world, in general the development has also been cumulative—that is, the shift to a new emphasis has seldom led to an explicit repudiation of the old. The result is that most modern states at least profess to respect nearly the whole vast and sometimes bewildering congeries of civil liberties that has been described. Evidently this profession creates problems, not the least of which arises from the fact that these heterogeneous liberties may conflict with one another. If government undertakes to ensure positive rights—for example, the right to an adequately paid job—it must assume broad authority to control the economic order, and a government thus endowed with powers may use them to encroach not only on economic liberty but on liberty in general. In the communist world this dilemma has been more or less frankly resolved by the subordination of even such rights as free speech and fair trial to the cause of “strengthening the socialist system.” In the West peoples have tried, with varying success, both to enjoy the “welfare state” and to maintain private and political freedom, although the range of economic freedom from public control has certainly contracted since the heyday of laissez-faire ideology in the nineteenth century. There is an old and still controversial question whether other rights can survive in a state where economic rights have been thus demoted. So far the evidence suggests a very tentative “yes.” In the United States, for example, the increase in government economic control since 1930 has been accompanied by a growing (although still inadequate) concern for other personal freedoms. But a different answer might have seemed justified in the 1930s, when the twin phenomena of economic depression and fascism dominated the world landscape, and history has perhaps not yet provided enough data so that the book can be closed on this issue.

However, even if the problem of economic liberty is defined away or bypassed, potential conflict between other civil liberties remains a difficulty. The right to comment on public affairs is no doubt essential in any free society, yet if the comment concerns a pending court case, it may impair the right to fair trial, which is equally essential. The religious zealot must be allowed to urge his views, but he may in doing so encroach on the right of others to be let alone, the “right to privacy.” Most discussion of such perplexities has so far been limited to ritualistic advocacy of “freedom” or “order,” categories of little analytic value in this context. There is need for more treatments that recognize and cope with both horns of the dilemma.

Much the same thing can be said about the overarching problem of drawing the line between personal rights and public authority in concrete instances. Because they were struggling against an outright state policy of repression, the historic spokesmen of freedom usually employed the language of exhortation: their declarations took the form of general and often absolutist propositions. Opposition to them, on the other hand, was equally unqualified: liberty was “license,” which in turn was defined as anything the governors wished to proscribe. Such polarization was inevitable in a predominantly authoritarian system, and exhortation will always have its uses. But in states whose governments are committed to recognizing a range of legitimate civil liberty (and this is true today in most states in the noncommunist world), these uses are limited. The problem in such polities is to develop a just and workable reconciliation of two acknowledged goods—personal rights and community need. Hortatory, absolutist generalizations on either side can carry only part of the way to the problem's solution. Indeed, if depended on too much, they may hamper the solution by obscuring the fact that such a solution exists, that both the claims of the individual and the claims of authority must usually be weighed in the scales.

It is arguable that certain personal rights ought to be absolutely immune from state transgression: the “right to believe” has sometimes been so regarded; some procedural immunities, such as the right against forced confession, may fall in the same category. But all legal systems have recognized that at some point most freedoms may be restricted; the difficulty is where and how to set that point so as to admit valid community claims and yet ensure the maximum of personal liberty. The general principle is that government should inhibit freedom only as much as it has to in order to serve important community needs, and various attempts have been made to formulate a rule or a test that would implement this premise. The “clear and present danger” concept (that speech can be restricted only when it threatens an immediate and serious evil) represents one such attempt; the “balancing test” (that speech can be restricted when the state interest in suppression outweighs the private interest in freedom) represents another. But insofar as these “rules” are not merely tautological, they are shorthand phrases for a large number of alternatives that must be considered before a reasonable conclusion is reached—for example, the distinctions between “advocacy” and “incitement,” between “prior restraint” and “subsequent punishment,” between “state convenience” and “state necessity.” It would be desirable to analyze these alternatives in terms of the issues posed by the conflict between various exertions of state power and various kinds of liberty (e.g., an outright prohibition of free speech may raise questions different from those raised by an ordinance that only regulates the time, place, and manner of such speech; freedom of religious utterance and freedom of political advocacy may stand on different grounds).

Although conceptual treatments of the kind discussed above would be useful, they would leave unanswered other very important questions that should not be overlooked. Even if analysis can provide formulas for the reasonable protection of civil liberties, there remain the issues of what conditions are most likely to secure that protection in practice and, more specifically, what constitutional arrangements are most useful in this regard.

Conditions for protection of civil liberties

The first question is really an aspect of a much broader one—what conditions make for a “democratic” or “competitive” political system—and this is an issue too large and complex to be adequately treated here. However, a few contingent suggestions can be ventured. As might be expected, economic abundance in a given society seems to enhance the likelihood that civil freedom will be tolerated: broadly speaking, the more highly developed the country, the less the chance of arbitrary, authoritarian government. Yet this correlation may not be entirely dependable: it has been argued that in the early stages of economic progress a country may be more, rather than less, prone to generate the tensions that lead to authoritarianism. Education is another factor that appears to produce a national milieu favorable to civil liberties. Indeed, studies have found that even within nations the most educated tend to be the most favorable to “democratic values.” But it has been contended that the first steps toward widespread literacy may turn a nation in quite the opposite direction, and the case of Nazi Germany demonstrates that even a high educational level is not enough. Habit and custom also play a part: a well-established tradition of libertarianism tends to perpetuate itself. It has been urged that “pluralism” with respect to economic and social interests conduces to a free polity; certainly a nation sharply divided into two camps (e.g., the rich and the poor) is not likely to be a free one. Scholars have also from time to time argued that such factors as “national character” and “consensus on fundamentals” are determinative, but empirical study so far has not fully confirmed these insights. Finally, it is worth noting that certain political characteristics may affect the matter. Heavy involvement in politics of the military or of religious groups is often unfavorable to civil freedom; a one-party state need not be tyrannical, but it is likely to be. With the proliferation of new nations in modern times, political scientists are finding examples of an almost endless variety of objective circumstances, and further progress can be expected toward systematic understanding of the environmental prerequisites for civil liberty.

Constitutional guarantees

The emergence of new nations should shed brighter light on the constitutional arrangements for civil liberties. The past offers several prescriptions, but two stand out: the British system of parliamentary supremacy, in which civil liberties are preserved by the tradition of governmental self-restraint, and the American system, with a written bill of rights interpreted and enforced by judicial review. The difference is not so sharp as this bare description suggests—in practice Parliament also feels committed to historic written documents, such as the Act of Settlement, and custom plays a part in determining the actual constitutional structure in the United States—but a difference it is nonetheless. In spite of Britain's impressive success in maintaining civil liberties, the device of a written, nominally binding bill of rights has been adopted very widely by modern nations (Israel and some of the states of the British Commonwealth are among the exceptions), and debates on this matter seem rather academic. But questions remain about the content and character of such a statement. What kinds of rights should be included? Should the declaration list “positive rights,” such as the right to employment, which was formally secured by Germany's Weimar constitution and by the Soviet constitution of 1936? Should it include guarantees of rights against private action, such as the right against “abuse of economic power,” which is specified in the constitution of modern West Germany? The difficulty is that such rights are not self-executing; they depend on the willingness of the government to take the positive steps that are necessary to make them real—e.g., to stimulate the economy, or to adopt adequate regulatory measures. It has been argued that such guarantees are useful as statements of aspiration and as admonitions to the governors. Contrariwise, it has been suggested that being legally unenforceable, such merely moral prescriptions may cheapen the whole concept of rights in the minds of both governors and governed.

Even if the bill of rights takes the traditional form of negative restrictions on government, should these restrictions be expressed in general terms (”due process of law,” “freedom of religion”) or should they be spelled out in detail? Should the rights be stated as absolutes (”Congress shall make no law … abridging the freedom of speech”) or in qualified terms (as in the Nigerian provision that rights may be limited in ways that are reasonably justified in a democratic society)? Should the declaration list all negative rights that seem important (the Weimar constitution protected motherhood and forbade public instruction that hurt the feelings of nonconformist pupils); if not, which rights do merit explicit statement? Common sense and past experience suggest tentative answers to such questions; further observation and future experience should bring more enlightenment.

Finally, supposing a nation's cultural and political environment makes civil liberty plausible and the nature and content of the bill of rights has been determined, how can those rights be best enforced? Probably the primary, and surely an indispensable, agency is an independent judiciary. It is hard to see how civil liberty can be more than an empty promise unless there are courts free to handle claims between persons and to check the arbitrary acts of administrative officials. Whether the judiciary should also be granted the power to enforce the bill of rights against the legislature itself—that is, whether it should exercise the power of judicial review—is an important question discussed elsewhere [seeJudicial process, article onJUDICIAL REVIEW]. A few decades ago many scholars, even in the United States, were skeptical of judicial review, which they felt had been used by the Supreme Court to restrain economic reform rather than to protect the rights of man. Since then that court and, to a lesser extent, the judiciaries of some American states have done more to defend civil liberties than any other agency of American government, and the attitude of scholars has changed accordingly. During the same period there has been a tendency, although not an overwhelming one, for other countries (e.g., the German Federal Republic, Italy, India) to adopt judicial review in some form, and as history proceeds there will be a growing body of evidence on the relation between civil liberties and this once uniquely American institution.

Robert G. McCloskey

[See alsoCivil disobedience; Democracy; Equality; Freedom; Human rights.]

BIBLIOGRAPHY

Chafee, Zechariah Jr. 1941 Free Speech in the United States. Cambridge, Mass.: Harvard Univ. Press. → Supersedes Chafee's Freedom of Speech, 1920.

Commager, Henry Steele et al. 1951 Civil Liberties Under Attack. Philadelphia: Univ. of Pennsylvania Press.

Corwin, Edward S. 1948 Liberty Against Government: The Rise, Flowering and Decline of a Famous Juridical Concept. Baton Rouge: Louisiana State Univ. Press.

Cushman, Robert E. 1956 Civil Liberties in the United States: A Guide to Current Problems and Experience. Cornell Studies in Civil Liberty. Ithaca, N.Y.: Cornell Univ. Press.

Emerson, Thomas I.; and Haber, David (1952) 1958 Political and Civil Rights in the United States: A Collection of Legal and Related Materials. 2d ed., 2 vols. Buffalo, N.Y.: Dennis.

Fellman, David 1958 The Defendant's Rights. New York: Holt.

Hobhouse, Leonard T. 1911 Social Evolution and Political Theory. New York: Columbia Univ. Press.

Kauper, Paul G. 1962 Civil Liberties and the Constitution. Ann Arbor: Univ. of Michigan Press.

Meiklejohn, Alexander 1960 Political Freedom: The Constitutional Powers of the People. New York: Harper.

Roche, John P. 1963 The Quest for the Dream: The Development of Civil Rights and Human Relations in Modern America. New York: Macmillan.

Schumpeter, Joseph A. (1942) 1950 Capitalism, Socialism, and Democracy. 3d ed. New York: Harper; London: Allen & Unwin. → A paperback edition was published by Harper in 1962.

Stouffer, Samuel A. (1955) 1963 Communism, Conformity, and Civil Liberties: A Cross-section of the Nation Speaks Its Mind. Gloucester, Mass.: Smith.

IV CIVIL RIGHTS

Although the terms “civil rights” and “civil liberties” are often used interchangeably, when they are differentiated the latter generally denotes the rights of individuals, while the former refers to the constitutional and legal status and treatment of minority groups that are marked off from the majority by race, religion, or national origin. The following illustration will show the difference. In the United States since the end of slavery, there has never been any question about the Negro's equal rights to freedom of religion or freedom of the press—basic civil liberties; at the same time, he could be treated as a member of his race, and not as an individual, with respect to the schools he could attend and the public facilities he could enjoy—basic civil rights. The distinction between the person as an individual and the person as a member of a group has its roots in history, morality, and social psychology. Reinhold Niebuhr noted that

It may be possible, though it is never easy, to establish just relations between individuals within a group purely by moral and rational suasion and accommodation. In inter-group relations this is practically an impossibility. The relations between groups must therefore always be predominantly political rather than ethical, that is, they will be determined by the proportion of power which each group possesses at least as much as by any rational and moral appraisal of the comparative needs and claims of each group. (1932, pp. xxii-xxiii)

While individual and group rights are to be differentiated, it is probably true that there is no chance for the emergence of the latter if the former are denied, so that the struggle for civil liberties must first be won and the fundamental human rights vindicated and secured before minority rights will be recognized. The struggle for civil rights cannot be conducted for those who are yet denied basic human rights.

In the broad sweep of history—though no doubt there have been numerous exceptions—the relations of a dominant majority toward a weak minority group, or of the conqueror toward the defeated enemy, first took the form of total annihilation or of cannibalism; then the form of slavery or total subjection; then the milder yet still severe form of assignment to an inferior caste; then cooperation and equality. Yet in modern times all forms have coexisted: in Nazi Germany the Jewish people were exterminated, in India the Untouchables still suffer because of the caste system, and in the United States the Negroes are moving into full equality. Even in the ancient world, while Aristotle was teaching that non-Hellenic peoples were fit only for slavery, his former pupil, Alexander of Macedon, acted on the principle that Greeks and Persians, victors and vanquished, could associate on the basis of equality and fraternity.

On one hand, one finds everywhere and at all times fear and hatred of the foreigner, the stranger, the man of different color or tongue or beliefs; on the other hand, there is evidence of an effort of the human consciousness to be aware of the universal in all men, of a common bond and a common destiny. “The universal in its true and inclusive sense is a thought,” Hegel said, “that it has cost thousands of years to bring to human consciousness, and that received its full recognition only through the aid of Christianity. The Greeks knew neither God nor man in their true universality” ([1817] 1841, p. 321). This is too sweeping a judgment, for Stoicism of the Hellenistic age taught the ideal of the cosmopolis, or world state, in which all men, Greek and barbarian, urban and rural, would enjoy equality; but it is true that the ideals of the Fatherhood of God and the brotherhood of men found their clearest expression in the Hebrew prophets and Christian teachings. In time, Stoic and Biblical ideals became fused in various schools of natural law that dominated political thought in the West down to the nineteenth century. Thus, denial of equality to minority groups could and was challenged in the name of religion or political theory or philosophy. In modern times the denial of equality to religious, racial, and ethnic minorities also assumed ideological and even religious formulations in theories of racial inferiority and in various political ideologies; but with respect to all such formulations, Arnold Toynbee's judgment seems appropriate: “The present vogue of racialism in the West,” he wrote, “however, has really little to do with current scientific hypotheses. A prejudice so strong as this cannot be accounted for by a cause so rational” (1934).

Until World War I one could hardly speak of a struggle for civil rights; one could see only a record of oppressions and persecutions of minority groups. But then came an awakening of nationalism, and, at least in Europe, oppressed nations became independent, and minority religious and ethnic groups within nations were guaranteed their collective rights by constitutions and international treaties. Although these guarantees generally proved ineffective, they were significant for recognizing the moral claims of minorities.

The claims became universal and reached a climax at the end of World War II. First the Indian subcontinent won freedom in 1947, then Indonesia, then in 1957 the Gold Coast (Ghana), in Africa. In 1945, when the United Nations was organized, the white race of Europe and North America dominated the world. The UN Charter was signed by fifty nations. By the 1960s the UN had over 100 members, more than thirty of them new African nations; and the white race had begun to recognize its own minority status. Almost throughout the world there was violence. However, whereas in former centuries what was obvious was the oppressive measures imposed upon minorities by the dominant group, now one saw minority groups resort to violence against what they considered to be oppressive majorities: for example, Turks against Greeks in Cyprus; Kurds against Arabs in Iraq; Negroes against East Indians in British Guiana; Muslims against Hindus in India; and Hindus against Muslims in Pakistan. In some countries, as in Belgium and India, there were struggles over language rights. No minority group was willing to remain in a position of relative inferiority and subjection. In some instances the struggle for civil rights was against a dominant minority, as by Buddhists against Roman Catholics in South Vietnam or by the nine million African Negroes against the three million whites in the Republic of South Africa. Sometimes the struggle for civil rights, as on behalf of the three million Jews in the Soviet Union, was conducted by concerned persons living outside the area (the Jews of Israel and of the West). The pattern, when viewed ecumenically, is extremely complex.

Apart from national emancipation after World War I and the winning of independence by the peoples of Asia and Africa after World War II, the most dramatic developments in the struggle for civil rights have been in India, the United States, and in international organizations. These will be reviewed briefly.

India . More than fifty million Indians were deemed to be Untouchables by birth and were prevented by custom and law from social and religious contact with other Hindus. For decades Mohandas K. Gandhi had led a nonviolent struggle for their equality. When India became a member of the (British) Commonwealth of Nations and adopted a constitution in 1949, the Untouchables won official political, economic, and social equality. This equality affected their status as well as their competitive opportunity, thus striking at the roots of the caste idea of “outcastes.” In guaranteeing the right of equality, the constitution states that the state shall not discriminate against any citizen on account of caste; that no citizen shall, on the ground of caste, be subject to restriction in access to or use of shops, restaurants, public wells, and tanks; and that the practice of untouchability is forbidden. The constitution also guarantees the practice of any calling without restriction and provides that the state shall promote “with special care” the educational and economic interests of “the weaker sections of the people” and shall protect them “from social injustice and all forms of exploitation.” The law grants former Untouchables preferential treatment by the government in jobs and offices and reserves for them educational and professional opportunities.

The struggle for equality has been helped not only by law but also by certain material forces, notably expanding urbanism and industrialism and the growth of transport and communications.

However, factors have developed that tend to perpetuate, and even to strengthen, the caste organization of Indian society: all castes, high and low, have become corporate political bodies that court favor and power, so that elections are fought on caste lines, party tickets tend to be formed on the same bases, and recruitment and promotions reflect caste consciousness. Caste associations have grown in number and strength. At the National Integration Conference in 1961, President Radhakrishnan stated that although caste is ceasing to be a social evil, it has become a political and administrative evil. Caste loyalties are utilized for the purpose of winning elections or getting people into jobs, for exercising some kind of favoritism or nepotism. It is doubtful, however, that untouch-ability is no longer a “social evil,” for the vast majority of the caste, illiterate and economically weak, submit silently to continued discriminations; and in a country where there is substantial unemployment, it is natural that members of the most depressed classes should suffer continued discrimination rather than run the risk of losing their jobs through retaliation and intensified prejudice. In any case, India demonstrates the difficulties involved in establishing civil rights in traditional societies.

United States. The first civil rights challenge in the United States was presented by the Indians. As the white man pushed westward, he demanded more and more of the Indians' land. Congress in 1830 enacted the Indian Removal Act, which was based on the assumption that segregation would end the conflict between the races, as land would be provided for the Indians in western territory and the whites would occupy all of the eastern lands. Coupled with land hunger was the policy of putting Indian cultures and tribal organizations into the “melting pot,” where they would be destroyed, and of converting Indians from hunters and fishermen into farmers and cattlemen. Cultural, social, and economic assimilation would, at the same time, make available much of the “surplus” Indian lands, which consisted of 150 million acres in 1873. The policy was expressed in the General Allotment Act of 1887, called the Dawes Act, under which it was possible to individualize the Indian landholdings and to permit Indians to dispose of the land as they wished. Citizenship could be acquired by Indians as they left their tribes and chose to live among the civilized people. By 1933, two-thirds of the lands held by the Indians in 1887 had been lost.

An act of 1924 gave citizenship to all Indians, but as late as 1956 there were states that denied them the franchise. Other discriminatory practices, some of them required by law or regulation, were prohibited by a 1934 statute. In the same year Congress enacted the Indian Reorganization Act, the most comprehensive law since 1887. Under its terms, Indian landholdings were increased and land conservation measures were introduced; the organization of Indian tribes was reinvigorated, and tribal customs and laws were given dignity and power; liberal credit policies were established to aid the tribes and individual Indians. The law encouraged respect for Indian cultural life and institutions, especially Indian arts and crafts (under an act of 1935).

Government policy in the 1950s reversed the trends and reverted to pre-1934 positions; in 1961, however, there was again a fundamental change in course when the federal government apparently returned to the Indian policies of the Franklin D. Roosevelt and Truman administrations. Federal policy thus fluctuates between a desire not to recognize the Indians as in any way differentiated from the rest of the population, and thus not entitled to any special claims or rights, and a desire to afford them an opportunity to develop their own styles of life and to protect them against greed and prejudice. Thus, there is a conflict between total assimilation and cultural pluralism. While the Indian encounters varying degrees of prejudice and discrimination in many parts of the country, his friends continue to debate his future between the poles of integration and disintegration of Indian life and culture.

The Negro presented problems of a different complexity and order, for after emancipation he had to bear the memory, habits, and history of slavery; he had no indigenous culture and tribal life that he wanted to preserve; he could never claim that he once owned all the land. His skin was darker, he originally came from another continent, and he could be counted in the millions; and there were no large reservations where he could make his home—he had to live in close proximity to those who had been his masters.

At the end of the Civil War and after adoption of the thirteenth amendment, which outlawed slavery and peonage, Congress proceeded to ensure equality for the four million freedmen by providing for their “personal liberty, personal security,” and their “free enjoyment” of “immunities and rights.” “Civil rights” began with passage on April 9, 1866, of “An Act to Protect All Persons in the United States in Their Civil Rights, and Furnish the Means of Their Vindication.” Since the act's constitutionality was doubted, two months later Congress passed the fourteenth amendment, which was ratified in 1868. Under its terms, Negroes became citizens of the United States and of the states wherein they resided; the amendment provided, too, that no state shall deprive any person of his life, liberty, or property without due process of law nor deny to any person the equal protection of the laws. The fifteenth amendment, ratified in 1870, provided that the right to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.

To implement these constitutional provisions, Congress, until the end of Reconstruction in 1877, enacted a series of civil rights acts. The most important of them was the Civil Rights Act of 1875, which prohibited racial discrimination in inns, public conveyances, theaters, and other places of public amusement. From the debates on this act in Congress, it is clear that its purpose was to wipe out all the incidents and badges of slavery. In 1883 the Supreme Court held the act unconstitutional on the ground that the statute prohibited racial discrimination by private individuals, while the fourteenth amendment authorized congressional action only to enforce prohibitions on state action. Then in 1896 the Supreme Court, in Plessy v. Ferguson, upheld as constitutional state laws that required racial segregation in public conveyances, on the theory that “separate but equal” facilities were not a denial of equality. This decision was interpreted as extending the cloak of constitutionality to racial segregation in schools, all public buildings and institutions, restaurants, theaters, and all other public accommodations, publicly or privately operated. Racial segregation was the pattern in 17 southern and border states and in the District of Columbia.

The “separate but equal” rule was flagrantly flouted—separation was enforced, but equality was not provided. The schools and other facilities afforded Negroes were patently, and often grossly, inferior; for example, for 1951 the expenditure per pupil in average daily attendance for nine segregated states was $136.73 for white and $74.67 for Negro; and the average salary per member of staff was similarly disproportionate. In 1938, in a case brought by a Negro who sought admission to the law school of the state University of Missouri, and in 1950, in cases involving a Negro student of law at the University of Texas and a Negro graduate student in education at the University of Oklahoma, the Supreme Court questioned the way the “separate but equal” rule was operating and raised serious doubt whether this rule could be used at all in graduate and professional studies without denying the Negroes' constitutional right to equal protection under the fourteenth amendment. In the field of interstate transportation, also, in cases decided in 1946 and 1950, the Supreme Court considerably weakened the constitutional underpinnings of racial segregation. The deathblow to de jure racial segregation came in 1954, in Brown v. Board of Education of Topeka (347 U.S. 483), in which the Court unanimously upheld the contention of the National Association for the Advancement of Colored People (NAACP) that segregated public schools are not “equal” and cannot be made “equal.” In subsequent cases the Court outlawed segregation in state colleges and universities, transportation, parks, municipal golf courses, public beaches, and wherever the state participated in a property's maintenance.

Compliance with the mandate to desegregate public facilities was resisted in the 17 affected states, especially with respect to public schools, and particularly in Mississippi and Alabama. Under the banner of “states' rights,” all sorts of devices were resorted to by segregationists to nullify the orders of the federal courts; and the segregation forces attempted to paralyze the NAACP so that it might not continue its legal defense operations in the south.

In 1955 and 1956, under the leadership of Martin Luther King, Jr., a Negro minister, the Negroes of Montgomery, Alabama, engaged in a boycott of the segregated buses in that city. King was a follower of Gandhi and Thoreau in his philosophy of nonviolent resistance to immoral or unconstitutional laws and customs. Three years later, under NAACP leadership, Negro high-school students in Oklahoma City, Oklahoma, launched a sit-in demonstration at lunch counters in chain stores to win nonsegregated service. At Greensboro, North Carolina, in 1960 several Negro college students staged a sit-in at a lunch counter, spontaneously and without organizational support. These instances served as a pattern for what soon became a widespread movement throughout the southern and the border states against segregation in privately owned places of public accommodation. In many cities the sit-in demonstrations were successful; but everywhere in the affected states and cities there was massive resistance, and white extremists often resorted to violence and even murder. The situation was aggravated by attempts made by Negro organizations to induce Negroes to register as voters in places where they were systematically kept off the suffrage rolls.

When it became apparent that the situation had become intolerable, President John F. Kennedy submitted to Congress a comprehensive civil rights bill to outlaw racial segregation in places of public accommodation, to eliminate discrimination in employment, to assure free suffrage to the Negro, and to end discriminatory practices in housing. The bill was based on the assumption that the Supreme Court would overrule or circumvent its decision in the so-called Civil Rights Cases of 1883, just as it had overruled Plessy v. Ferguson (1896) in 1954. Congress (following a filibuster in the Senate) passed the bill on July 2, 1964, and it was immediately signed by President Lyndon B. Johnson. Although Congress had passed civil rights acts in 1957 and 1960, the act of 1964 was the first really significant civil rights breakthrough in Congress since the end of Reconstruction in 1877.

The new federal law was not as necessary in the north as in the south. In 1865 Massachusetts enacted the first state law in the country banning racial discrimination in places of public accommodation. By 1900 there were similar statutes in 18 states; by 1960 there were 24. In 1945 New York became the first state to enact a fair employment practice act; by 1960 there were similar laws in 17 states. There was a network of related laws dealing with discrimination in housing and in education. The statutes barred discrimination on account of religion or national origin as well as on account of race or color. Yet the combination of criminal, civil, and administrative remedies provided by this complex of laws did not prevent the rise and spread of de facto racial segregation, especially in the northern urban centers, where Negro ghettos came into being and were enlarged by the Negro migrations from the south. In these ghettos the schools were almost exclusively Negro; the rate of unemployment was substantially higher than it was for white workers; the housing was substandard or constituted a slum area that was a breeding place for crime, delinquency, drug addiction—evils that in turn fostered unemployment, apathy, frustration. Under these circumstances, enactment of the Civil Rights Act of 1964 did not bring to the Negroes of Harlem and other slum centers in the north promise of a new day, and in the summer of that year there were outbursts of violence in the Negro ghettos in Manhattan, Brooklyn, and Rochester, New York; Jersey City, New Jersey; and elsewhere.

These outbreaks of anger against the evils of de facto segregation precipitated two reactions: on the one hand, a white “backlash” against civil rights; on the other hand, a more widespread recognition of the fact that the movement for civil rights must be intimately linked with policies of full employment, greatly improved educational facilities and techniques for all economically underprivileged children, urban redevelopment that would provide better housing and neighborhoods for lower-income groups, and, in general, policies that would cope with the social, economic, and cultural aspects of the modern megalopolis. The Economic Opportunity Act of 1964 and the creation, in 1965, of the Department of Housing and Urban Development, headed by the first Negro in the cabinet, were in part responses to civil rights challenges. The Voting Rights Act of 1965 was a major step toward implementing the fifteenth amendment and promised greater political power for the large masses of Negroes in the southern states.

International arena. The ideas of human dignity, equality, and fundamental human rights are deeply rooted. Numerous passages in the Old Testament command nations not to oppress the alien and the stranger and to protect the poor, the orphan, and the widow. At the same time, the pages of history record “man's inhumanity to man” that has made “countless thousands mourn.” The struggle for equality has been aided by the revolution in travel and communication, and in technology generally, so that men see themselves as being interdependent more than they had ever been before. For example, Negroes in the United States know that the African peoples have won their independence and that their representatives have places of equal dignity and rights in international organizations and meetings; and this phenomenon has brought moral strength to U.S. Negroes, so that they demand, and struggle for, their rights as Americans and as members of the human family.

Lord Acton, in an address in 1877, stated that the “most certain test by which we judge whether a country is really free is the amount of security enjoyed by minorities” ([1861–1910] 1948, p. 33). It was not until the twentieth century that official agencies for judgment came into being. Following World War I, as we have noted, there was an attempt to protect some national minorities by trea-ties; the mandates system under the League of Nations should also be noted in this connection. But the international, programmatic promotion of minority protection and human rights in general was undertaken only after World War II. Articles 1 and 55 of the Charter of the United Nations were designed to promote and encourage respect for human rights and fundamental freedoms for all, without distinction as to race, sex, or religion. UN bodies that work toward this end are the Third Committee of the General Assembly, the Economic and Social Council, the Human Rights Commission, the Commission on the Status of Women, and the Sub-Commission on Prevention of Discrimination and Protection of Minorities.

In 1948 the United Nations General Assembly adopted the Universal Declaration of Human Rights as a statement of principles to be implemented by subsequent conventions that would be binding on ratifying member states. In December 1965 the Assembly approved the convention on the elimination of all forms of racial discrimination. An important feature of the convention was the provision that allowed ratifying nations to bind themselves to permit individuals or groups to charge their governments with violations.

Other international organizations that are concerned with these matters are UNESCO, the International Labour Organisation, the European Commission on Human Rights and the European Court of Human Rights, and the Inter-American Commission on Human Rights. Mention may also be made of the International Commission of Jurists and the International League for the Rights of Man.

While the European Convention on Human Rights has established compulsory machinery, the Commission and the Court, for dealing with cases involving violations of human rights, and the International Labour Organisation has established effective machinery for investigation and reports respecting certain areas of human rights, other agencies normally rely on implementation through reporting systems.

The chief utility of the agencies has been to expose to general view the facts of human rights violations and to win support for the claim that there is a universal law of humanity, under which individuals and groups (religious, racial, cultural, and national) should somehow be protected against attempts to destroy (genocide), discriminate against, or humiliate them. What Walter Bagehot called “government by discussion” (1872, chapter 5) has not come into existence in the interational field; yet the open and vigorous discussion of human rights in governmental and non-governmental agencies has done much to make meaningful the preamble to the UN Charter, which proclaims the determination of the nations “to re-affirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small… .”

Thus, a denial of civil rights—whether it takes place in Birmingham, Alabama, or in Birmingham, England, or in the U.S.S.R., or in South Africa, or in Bechuanaland, or in Algeria—is no longer a parochial domestic question, but has become a matter of universal concern, a concern that implies the belief (as stated by Pope John XXIII in Pacem in terris 1963) that human society is founded on the principle that every human being is a person, that his nature is endowed with intelligence and free will, that he has rights that flow directly from his very nature, and that these rights are universal, inviolable, and are such that they cannot in any way be surrendered.

Milton R. Konvitz

[See alsoAssimilation; Human rights; Minorities; Race; Race relations; Segregation.]

BIBLIOGRAPHY

Acton, John E. D. (1861–1910) 1948 Essays on Freedom and Power. Boston: Beacon. → A paperback edition was published in 1955 by Noonday.

Bagehot, Walter (1872) 1956 Physics and Politics: Or, Thoughts on the Application of the Principles of “Natural Selection” and “Inheritance” to Political Society. Boston: Beacon.

Baldry, H. C. 1965 The Unity of Mankind in Greek Thought. Cambridge Univ. Press.

Barron, Milton L. (editor) 1957 American Minorities: A Textbook of Readings in Intergroup Relations. New York: Knopf.

Brooks, Alexander D. 1962 Civil Rights and Civil Liberties in the United States: An Annotated Bibliography. New York: Civil Liberties Educational Foundation.

Chief Ministers' Conference on National Integration, Delhi 1961 National Integration: Decisions Taken by the Chief Ministers' Conference. New Delhi: Directorate of Advertising and Visual Publicity.

Collier, John 1947 The Indians of the Americas. New York: Norton. → An abridged paperback edition was published in 1953 by New American Library.

Epstein, Benjamin R.; and Foster, Arnold 1962 “Some of My Best Friends … .” New York: Farrar, Straus.

Franklin, John H. (1947) 1956 From Slavery to Freedom: A History of American Negroes. 2d ed., rev. & enl. New York: Knopf.

Glazer, Nathan; and Moynihan, Daniel P. 1963 Beyond the Melting Pot: The Negroes, Puerto Ricans, Jews, Italians, and the Irish of New York City. Cambridge: M.I.T. Press.

Gordon, Milton M. 1964 Assimilation in American Life: The Role of Race, Religion, and National Origin. New York: Oxford Univ. Press.

Gossett, Thomas F. 1963 Race: The History of an Idea in America. Dallas, Texas: Southern Methodist Univ. Press.

Greenberg, Jack 1959 Race Relations and American Law. New York: Columbia Univ. Press.

Grimes, Alan P. 1964 Equality in America: Religion, Race, and the Urban Majority. New York: Oxford Univ. Press.

Gumplowicz, Ludwig 1883 Der Rassenkampf: Sociologische Untersuchungen. Innsbruck (Austria): Verlag der Wagner'schen Universitats Buchhandlung. → Also published in 1893 in French as La lutte des races; Recherches sociologiques.

Handlin, Oscar 1957 Race and Nationality in American Life. Boston: Little.

Handlin, Oscar 1959 The Newcomers: Negroes and Puerto Ricans in a Changing Metropolis. Cambridge, Mass.: Harvard Univ. Press.

Handlin, Oscar 1964 Fire-bell in the Night: The Crisis in Civil Rights. Boston: Little.

Harris, Robert J. 1960 The Quest for Equality: The Constitution, Congress, and the Supreme Court. Baton Rouge: Louisiana State Univ. Press.

Hegel, Georg W. F. (1817) 1841 Werke. Volume 6: Encyklopädie der philosophischen Wissenschaften im Grundrisse. 2d ed. Berlin: Duncker. → Translation of extract in text provided by Milton R. Konvitz.

Kallen, Horace M. 1924 Culture and Democracy in the United States: Studies in the Group Psychology of the American Peoples. New York: Liveright.

Konvitz, Milton R. 1946 The Alien and the Asiatic in American Law. Ithaca, N.Y.: Cornell Univ. Press.

Konvitz, Milton R. 1947 The Constitution and Civil Rights. New York: Columbia Univ. Press.

Konvitz, Milton R. 1953 Civil Rights in Immigration. Ithaca, N.Y.: Cornell Univ. Press.

Konvitz, Milton R. (editor) (1954) 1965 Bill of Rights Reader. 3d ed. Ithaca, N.Y.: Cornell Univ. Press.

Konvitz, Milton R. 1961 A Century of Civil Rights. New York: Columbia Univ. Press.

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Constitutional Law

CONSTITUTIONAL LAW

The written text of the state and federal constitutions. The body of judicial precedent that has gradually developed through a process in which courts interpret, apply, and explain the meaning of particular constitutional provisions and principles during a legal proceeding. Executive, legislative, and judicial actions that conform with the norms prescribed by a constitutional provision.

The text of the U.S. Constitution is marked by four characteristics: a delegation of power, in which the duties and prerogatives of the executive, legislative, and judicial branches are delineated by express constitutional provisions; a separation of powers, in which the responsibilities of government are divided and shared among the coordinate branches; a reservation of power, in which the sovereignty of the federal government is qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the prerogatives of the three branches of government are restricted by constitutionally enumerated individual rights, unenumerated rights derived from sources outside the text of the Constitution, and other constraints inherent in a democratic system where the ultimate source of authority for government action is the consent of the people.

In deciding their cases, courts look to these constitutional provisions and principles for guidance. Once a court has interpreted a constitutional provision in a certain fashion, it becomes a precedent. Under the doctrine of stare decisis, the judicial branch is required to adhere to existing precedent in all future cases presenting analogous factual and legal circumstances, unless it has a compelling reason for deviating from the precedent or overruling it.

A state or federal law is said to be constitutional when it is consistent with the text of a constitutional provision and any relevant judicial interpretations. A law that is inconsistent with either the written text or judicial interpretation of a constitutional provision is unconstitutional.

The Constitution

The U.S. Constitution is the highest law in the land and the foundation on which all U.S. law has been built. By establishing a structure for the federal government and preserving certain areas of sovereignty for the states, the Constitution has created a system of government that has allowed every area of civil, criminal, and administrative law to evolve with the needs of society. The federal Constitution became binding on the U.S. people in 1788 when New Hampshire, pursuant to Article VII, became the ninth state to vote for ratification.

The federal Constitution comprises seven articles and 26 amendments. Articles I, II, and III set forth the basic structure of the U.S. government. Article I defines congressional lawmaking powers, Article II sets forth the presidential executive powers, and Article III establishes federal judicial powers. The first ten amendments to the U.S. Constitution, known as the bill of rights, enumerate certain individual liberties that must be protected against government infringement. The rest of the Constitution contains miscellaneous other provisions, many of which are intended to maintain a federalist system of government in which the federal Constitution is the supreme law of the land and the federal government shares sovereignty with the states.

Article I: The Lawmaking Power Article I of the Constitution allocates the lawmaking power to Congress. Section 1 provides that "[a]ll legislative Powers herein granted shall be vested in a congress of the united states, which shall consist of a Senate and a House of Representatives." Article I also requires that candidates running for the House of Representatives be elected directly by the residents of each state. Originally, Article I endowed the state legislatures with the power to choose members of the Senate. However, the seventeenth amendment now requires all senators to be elected directly by the people of their home state.

Section 8 enumerates specific lawmaking powers that Congress may exercise. These include the power to declare war; raise and support armies; provide and maintain a navy; regulate commerce; borrow and coin money; establish and collect taxes; pay debts; establish uniform laws for immigration, naturalization, and bankruptcy; and provide for the common defense and general welfare of the United States. Both the Senate and the House must approve all bills before they are submitted to the president. If the president vetoes a bill, Section 7 authorizes Congress to override the veto by a two-thirds vote in both houses. Because Congress is a public body, this article requires the House and Senate to record and publish its proceedings, including the votes made by any of its members.

Section 8 also grants Congress the power to pass all laws that are "necessary and proper" to the performance of its legislative function. In mcculloch v. maryland, 17 U.S. (4 Wheat.) 316, 4 L. Ed. 579 (1819), the Supreme Court broadly interpreted the necessary and proper clause to grant Congress the implied powers to enact all laws that are useful, convenient, or essential to fulfilling its lawmaking and fiscal responsibilities. thomas jefferson had earlier argued that the Necessary and Proper Clause authorized Congress only to enact measures that are indispensable to the implementation of the enumerated powers.

Congress frequently relies on its authority to regulate commerce as a justification for the legislation it enacts. Section 8 gives Congress the "power to regulate commerce among the several states." In gibbons v. ogden, 22 U.S. (9 Wheat.) 1, 6 L. Ed. 23 (1824), the Supreme Court ruled that congressional power to regulate commerce is plenary (complete in itself) and extends to all interstate commerce (commercial activity that concerns more than one state). The Court said that intrastate commerce (commercial activity that is conducted exclusively within one state) is beyond the reach of this congressional power.

Congressional commerce power reached its zenith in Wickard v. Filburn, 317 U.S. 111, 63 S. Ct. 82, 87 L. Ed. 122 (1942), where the Supreme Court ruled that Congress has authority to regulate a family farm that produces and consumes its own wheat. The Court said that "even if [a farm's] activity be local, and though it may not be regarded as commerce, it may still … be reached by Congress, if it exerts a substantial economic effect on interstate commerce … irrespective of whether such effect [is] direct or indirect."

This seemingly unfettered power was later limited, in United States v. Lopez, 514 U.S. 549, 115 S. Ct. 1624, 131 L. Ed. 2d 626 (1995), where the Supreme Court ruled that mere possession of a gun at or near a school does not substantially affect interstate commerce and may not be regulated at the federal level. Although the interstate commerce power has been given an expansive reading in modern times, the Court said in Lopez, the scope of congressional authority in this area

must be considered in light of our dual system of [state and federal] government and may not be extended so as to embrace effects upon interstate commerce so indirect and remote that to embrace them, in view of our complex society, would effectually obliterate the distinction between what is national and what is local and create a completely centralized government.

Article I of the Constitution not only delegates specific powers to Congress, it also forbids Congress to take certain action. Section 9, for example, prohibits Congress from passing bills of attainder and ex post facto laws. (A bill of attainder is a legislative act that imposes punishment on a party without the benefit of a judicial proceeding. An ex post facto law makes criminal or punishes conduct that was not illegal at the time it occurred.) Section 9 further prohibits Congress from suspending habeas corpus (a citizen's right to protection against illegal imprisonment) except as may be necessary to preserve national security in time of rebellion or invasion. Although the Constitution delegated this power to Congress, President abraham lincoln suspended habeas corpus during the Civil War without congressional assent. Article I also restricts the power of state legislatures, such as the power to make treaties, alliances, and confederations, are also prohibited by Article I.

Article II: The Executive Power Congressional power is not absolute. The Framers of the Constitution were familiar with the abuses of absolute power. In the century preceding the American Revolution, Parliament acquired unlimited sovereignty. This arrangement replaced an earlier system of government in which the English monarchy ruled with a tyrannical scepter. In the United States, the Framers sought to create a system of checks and balances in which the executive and legislative branches would share power with each other and with the judiciary. In this light, many of the powers delegated to the president must be viewed in conjunction with the powers delegated to the coordinate branches of government.

Article II provides that "[t]he executive Power shall be vested in a President of the United States … [who] shall hold … Office during the Term of four Years … together with the Vice President." The electoral college, which provides the method by which the president and vice president are elected, derives its constitutional authority from Article II as well as from the Twelfth and Twenty-third Amendments. The twenty-second amendment limits the president to two terms in office, and the Twentieth and Twenty-fifth Amendments set forth the order of succession for presidents who are unable to begin their term or continue in office.

Article II, Section 2, makes the president the commander in chief of the armed forces. Yet only Congress has the power to declare war. Between these two powers lies a gray area in which presidents have exercised the prerogative to commit U.S. troops to foreign military excursions without congressional approval. The U.S. involvement in the vietnam war resulted from one such exercise of power. In response to these executive maneuvers, Congress passed the War Powers Resolution (Pub. L. No. 93-148 [ codified at 50 U.S.C.A. §§ 1541 et seq.]), which restricts the president's authority to involve the United States in foreign hostilities for more than 60 days without the approval of Congress.

The president also shares power with Congress in other areas under Article II. Section 2 authorizes the president to make treaties with foreign governments, but only with the advice and consent of the Senate. The president must also seek senatorial approval when appointing ambassadors; federal judges, including Supreme Court justices; and other public ministers.

Section 4 states that the president may be removed from office only through impeachment for "Treason, Bribery, or other High Crimes and Misdemeanors." The House is responsible for drafting articles of impeachment (accusations of misconduct), and the Senate is responsible for holding an impeachment trial. A two-thirds vote in the Senate is required for conviction.

The United States revisited the issue of what constitutes a High Crime and Misdemeanor during the impeachment proceedings against President william jefferson clinton. In 1998 the U.S. House of Representatives approved two articles of impeachment against President Clinton, accusing the president of having committed the crimes of perjury and obstruction of justice to conceal his relationship with a White-House intern named Monica Lewinsky. The impeachment trial was then held before the Senate from January 7, 1999, through February 12, 1999.

Clinton supporters generally opposed impeachment on grounds that concealing a private, extramarital affair should not constitute an impeachable high crime or misdemeanor. Clinton detractors generally supported impeachment on grounds that perjury and obstruction of justice are felony-level offenses that render a chief executive who is guilty of such offenses incompetent to discharge the duties of his office. Clinton supporters contended that past presidents had concealed their extramarital affairs without it rising to the level of an impeachable offense, while Clinton detractors countered by arguing that the president was not being impeached for having an extramarital affair but for committing crimes to conceal it.

Scholars debated the merits of the Clinton impeachment proceedings as well. However, constitutional historians on both sides of the debate generally agreed that the phrase High Crimes and Misdemeanors had no settled usage at the time the Constitution was ratified by the states, except that the Founding Fathers rejected proposals that would have allowed for impeachment in cases of maladministration, malpractice, or neglect of duty. The Founding Fathers favored a chief executive who was subject to constitutional checks and balances, but not one who was weak and easy to remove by political opponents. In the end, the Senate voted to acquit President Clinton. Neither article of impeachment was supported by even a majority of votes, far short of the 67 votes required to convict.

Although the president participates in the lawmaking process by preparing budgets for congressional review, recommending legislation on certain subjects, and signing and vetoing bills passed by both houses, no formal lawmaking powers are specifically delegated to the executive branch. The president nonetheless "legislates" by issuing executive orders, decrees, and proclamations. No express provision of the Constitution delineates the parameters of this executive lawmaking power. However, in youngstown sheet & tube co. v. sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952), the Supreme Court set forth some guidelines. Known as the Steel Seizure case, Youngstown examined the issue of whether the president of the United States could order the government seizure of steel mills that were crippled by a labor strike during the korean war. In holding the executive order unconstitutional, the Supreme Court ruled that "the President's power to see that the laws are faithfully executed refutes the idea that [the president] is to be a lawmaker."

Justice robert h. jackson, in a concurring opinion, set forth an analysis by which the Supreme Court has subsequently evaluated the constitutionality of presidential action. Jackson opined that presidential powers are not fixed, but fluctuate according to "their disjunction or conjunction with those of Congress." When the president acts pursuant to congressional authorization, the action carries maximum authority. When the executive acts contrary to congressional will, presidential powers are at their lowest ebb. Between these positions, when a president faces an issue on which Congress is silent, the executive acts in "a zone of twilight in which [the president] and Congress may have concurrent authority, or in which the distribution is uncertain." In such instances, Jackson reasoned, courts must balance the interests of the parties and of society to determine if a particular executive action has violated the separation of powers.

Another area that has stirred debate over the appropriate separation of powers involves the delegation of legislative, executive, and judicial authority to federal administrative bodies. Since the mid-1930s, the United States has seen an enormous growth in the administrative state. Administrative agencies have been created to establish, evaluate, and apply rules and policies over a diverse area of law, including taxes, securities, transportation, antitrust, the environment, and employment relations. Federal administrative bodies are created by statute, and Congress has the authority to prescribe the qualifications for administrative officials who are appointed by the president, courts of law, and heads of government departments.

The national labor relations board (NLRB) demonstrates the overlapping powers that may be exercised by an administrative body. The NLRB is empowered by statute to issue regulations that govern union activities. Such regulations are virtually indistinguishable from legislative enactments and are considered no less authoritative. The NLRB also adjudicates disputes between unions and employers, with an administrative law judge presiding over such cases. Finally, the NLRB is endowed with the power to make prosecutorial decisions, a power traditionally exercised by the executive branch. Although successful challenges have been lodged against the delegation of certain powers to federal administrative bodies, by and large, the Supreme Court has permitted administrative officials and agencies to play all three government roles.

Article III: The Judicial Power Article III provides that "[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." Pursuant to this constitutional authorization, Congress has created a federal judicial system comprising a lower tier of federal trial courts, known as the U.S. district courts, and an intermediate tier of federal appellate courts, known as the u.s. courts of appeals. At least one federal district court is located in each of the 50 states.

The federal appellate courts consist of 11 numbered circuit courts plus the Court of Appeals for the District of Columbia and the Court of Appeals for the Federal Circuit. Each federal appellate court has jurisdiction over a certain geographic area and may only hear appeals from federal district courts within that jurisdiction. Specialized courts of appeals have been created to hear appeals concerning such disputes as international trade (the court of International Trade) and military matters (the Court of Military Appeals). Parties aggrieved by a decision made by any of these federal appellate courts may appeal their case to the Supreme Court, which has the ultimate judicial power. Cases that originate in state court and present a federal question may also be appealed to the U.S. Supreme Court.

The Supreme Court is not required to hear every case that is appealed to it; instead, the Court has broad discretion to accept or decline cases that are appealed by a lower court. Only four justices need to vote in favor of hearing an appeal before a writ of certiorari will be granted. Certiorari is a device that allows the Supreme Court to call up the records of a lower court and review them in order to identify important legal questions that need to be resolved. Granting "cert" has no bearing on the Court's subsequent resolution of a case. The Court is asked to review about 5,000 cases a year and grants certiorari in less than 250 of them.

Federal courts do not have jurisdiction to hear every kind of lawsuit. Article III lists certain types of cases that may be heard by the federal judiciary, including cases arising under the Constitution; under treaties with foreign nations; and under federal laws passed by Congress, the executive, or an administrative body. Federal courts also have jurisdiction to hear lawsuits between two or more states, between citizens of different states, and between a citizen or government of one state and a citizen or government of a foreign country.

The Supreme Court has original jurisdiction over cases involving ambassadors and other public ministers as well as cases in which a state government is a party. Original jurisdiction gives a court the power to hear a lawsuit from the beginning, rather than on appeal. This grant of original jurisdiction does not preclude Congress from giving original jurisdiction to other courts over the same matters. In fact, Congress has granted concurrent original jurisdiction to the federal district courts for all controversies except those between state governments.

Nowhere in Article III, or elsewhere in the Constitution, is the power of the federal judiciary defined. Historically, the role of English and U.S. courts was to interpret and apply the laws passed by the other two branches of government. At the close of the eighteenth century, it was unclear whether that role included the prerogative of judicial review, which is the authority of state and federal courts to review and invalidate laws passed by legislatures that violate a constitutional provision or principle.

In marbury v. madison, 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803), the U.S. Supreme Court clarified this ambiguity by pronouncing that it "is emphatically the duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflict with each other, the court must decide on the operation of each." Because the federal Constitution is the supreme law of the land, the Court reasoned, any laws that violate the Constitution must be declared void. It was the essence of judicial duty, the Court intimated, for judges to evaluate the constitutionality of a particular act, because judges are not elected and are therefore independent from the political considerations that may have motivated the popular branches of government to enact that law. The Court reasoned that the executive and legislative branches could not be impartial arbiters of their own laws.

The Bill of Rights

When the U.S. Constitution was ratified by the states in 1789, it contained no bill of rights. During the last days of the Constitutional Convention, one of the delegates proposed that a bill of rights be included, but this proposal was voted down by every state. Many Framers of the Constitution believed that there was no need for a bill of rights because the powers of Congress and of the president were explicitly enumerated and limited, and no provision of the Constitution authorized any branch of government to invade the personal liberties of U.S. citizens.

Other Framers were concerned that any list of rights would be hopelessly incomplete and that the government would deny any liberties left unmentioned. This concern was ultimately expressed by the ninth amendment to the U.S. Constitution, which provides that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Ninth Amendment was later relied on by the Supreme Court to recognize the unenumerated right of married adults to use birth control (griswold v. connecticut, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 [1965]).

By 1791, the need for a bill of rights was viewed in a different light. The residents of the states soon realized that government by the will of the majority not only achieved democracy, it sometimes achieved majoritarian tyranny. The system of checks and balances created by the original Constitution was insufficient to avoid the pitfalls of absolute power endemic to the English form of government that the American colonists had overthrown. A bill of rights was needed to serve as a bulwark between individual liberty and arbitrary government power.

As with each of the 26 amendments to the Constitution, the Bill of Rights was proposed by a two-thirds majority in both houses of Congress and ratified by three-fourths of the states as required by Article V. The Bill of Rights, which comprises the first ten amendments to the Constitution, contains both procedural and substantive protections. In some instances, these protections guarantee the right to do, say, or believe something without government interference. In other instances, these protections guarantee the right to refrain from doing, saying, or believing something without government coercion.

The first three amendments provide substantive protections. The first amendment guarantees freedom of speech, press, religion, assembly, and petition. The Free Speech Clause protects "thoughts that we hate" (United States v. Schwimmer, 279 U.S. 644, 49 S. Ct. 448, 73 L. Ed. 889 [1929] [Holmes J., dissenting]). Such thoughts can be expressed verbally, as in a racially derogatory remark, or in writing, as in a Marxist-Leninist pamphlet denouncing the U.S. government, and still receive First Amendment protection. The First Amendment also protects certain symbolic expression, such as burning the U.S. flag in protest over government policy (texas v. johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L. Ed. 2d 342 [1989]). The Supreme Court has ruled that no political speech may be curtailed by the government unless it presents a clear and present danger of imminent lawless action (Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 [1969]).

The Free Press Clause prohibits the government from censoring news stories in the print and electronic media merely because the content is critical of the government. However, the Founding Fathers did not agree on the definition of censorship.

A majority of the Founding Fathers adhered to the English common law view articulated in the eighteenth century by sir william blackstone, who equated a free press with the doctrine of no prior restraint. This doctrine provides that a publication cannot be suppressed by the government before it is released to the public. Nor can publication of something be conditioned upon judicial approval before its release.

While the English common law prohibited prior restraint, it permitted prosecution for libelous and seditious material after publication. Thus, the law protected vituperative political publications only insofar as the author was prepared to serve time in jail or pay a fine for offending the sensibilities of the wrong person.

A minority of Founding Fathers adhered to the view articulated by james madison, who said that

The security of the freedom of the press requires that it should be exempt, not only from previous restraint of the executive, as in Great Britain; but from legislative restraint also; and this exemption, not only from the previous inspection of licensers, but from the subsequent penalty of laws.

Madison was concerned that authors would be deterred from writing articles assailing governmental activity if the government was permitted to prosecute them following release of their works to the public.

In near v. minnesota, 283 U.S. 697, 51 S. Ct 625, 75 L. Ed. 2d 1357 (1931), the Supreme Court incorporated the doctrine of no prior restraint in First Amendment jurisprudence, when it ruled that under the Free Press Clause there is a constitutional presumption against prior restraint which may not be overcome unless the government can demonstrate that censorship is necessary to prevent a clear and present danger of a national security breach. In new york times v. united states, 403 U.S. 713 92 S.Ct 2140, 29 L. Ed.2d 822 (1971) the Court applied this presumption against the United States justice department which had sought an injunction to prevent the publication of classified material revealing the secrecy and deception behind American involvement in the Vietnam War. If this classified material, also known as the Pentagon Papers, had threatened American troops by disclosing their location or movement, the Court said, publication would not have been permitted.

The Supreme Court's interpretation of the Free Press Clause has also gone a long way toward adopting Madison's sentiments against subsequent punishments for publishers of materials criticizing public officials. In a series of cases the Supreme Court has held that the First Amendment protects media outlets from being held liable in civil court for money damages merely because a published story contains an inaccuracy or falsehood about a public official. The Supreme Court has ruled that the media are immune from libel actions brought by public officials unless the plaintiff can demonstrate that a particular story was printed or aired with knowledge that it was false or in reckless disregard of its veracity, a principle that has become known as the "actual-malice" standard (new york times v. sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 [1964]). Finally, the media cannot be punished with civil or criminal sanctions for publishing pornographic material unless that material rises to the level of obscenity (miller v. california, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 [1973]).

The First Amendment contains two religion clauses. One guarantees the free exercise of religion. In most instances, the Free Exercise Clause prohibits the government from compelling a person to act contrary to his or her religious beliefs. For example, in Wisconsin v. Yoder, 406 U.S. 205, 92 S. Ct. 1526, 32 L. Ed. 2d 15 (1972), the Supreme Court held that a state cannot compel Amish parents to send their children to school past the eighth grade when doing so would violate their religious faith. However, in Reynolds v. United States, 8 U.S. 145, 25 L. Ed. 244 (1879), the Supreme Court refused to exempt Mormons from a federal law against bigamy, reasoning that polygamy was more a religious practice than a religious belief.

The other religion clause in the First Amendment prohibits the government from establishing religion. The Framers drafted the Establishment Clause to prevent the federal government from passing legislation that would create an official national church in the United States as Great Britain had done with the Anglican Church in England. Since the early 1970s, the Supreme Court has applied the Establishment Clause more broadly to strike down certain forms of government assistance to religion, such as financial aid. Such assistance will be invalidated unless the government demonstrates that it has a secular purpose with a primary effect that neither advances nor inhibits religion nor fosters excessive entanglement between government and religion (Lemon v. Kurtzman, 403 U.S. 602, 91 S. Ct. 2105, 29 L. Ed. 2d 745 [1971]).

The Second and Third Amendments also provide substantive protections. The second amendment acknowledges that a "well regulated Militia" is "necessary to the security of a free State," and guarantees "the right of the people to keep and to bear Arms." The right to bear arms is not absolute. It restricts only federal laws regulating the use and possession of firearms and has no applicability to state governments (Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 [1886]). In addition, Congress may prohibit the possession or use of a firearm that lacks any reasonable relationship to the preservation or efficiency of a well-regulated militia (United States v. Miller, 307 U.S. 174, 59 S. Ct. 816, 83 L. Ed. 1206 [1939]). Federal courts have interpreted the term militia to include only military groups that are organized by the state governments, such as the national guard, and to exclude private military groups that are not associated with the government, such as the Kansas posse comitatus (United States v. Oakes, 564 F.2d 384 [10th Cir. 1977]).

The third amendment, which is an out-growth of the American Revolution, prohibits the government from compelling homeowners to house soldiers without their consent. Although the Supreme Court has never decided a case that directly involved the forced quartering of soldiers, the Court of Appeals for the Second Circuit ruled that the Third Amendment's protections apply to the National Guard (Engblom v. Carey, 724 F.2d 28 [2d Cir. 1982]).

The Fourth, Fifth, Sixth, Seventh, and Eighth Amendments contain a mixture of procedural and substantive rights. Most of the procedural rights pertain to criminal law. As such, these rights offer protection against unconstitutional actions taken by government bodies and officials, such as law enforcement agencies and agents. These rights do not offer protection against action taken by private citizens unaffiliated with the government. For example, the fourth amendment prohibits the government from performing unreasonable searches and seizures and from issuing warrants on less than probable cause. The procedural requirements of the Fourth Amendment protect homes, papers, and other personal belongings in which an individual can demonstrate a "reasonable expectation of privacy" (Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 [1967]).

The fifth amendment offers procedural safeguards to criminal defendants and suspects. It provides that no person shall be held to answer for a capital or infamous offense unless first indicted by a grand jury. The Fifth Amendment further safeguards defendants from being "twice put in jeopardy of life or limb" for the "same offence." It also prohibits the government from compelling someone to incriminate himself or herself. The right to be apprised of many of these procedural protections during custodial police interrogations, through what are known as Miranda warnings, is derived from the Fifth Amendment (miranda v. arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 [1966]).

The sixth amendment provides a panoply of procedural protections for criminal defendants. Under the Sixth Amendment, defendants are entitled to notice of any criminal accusations against them. The Sixth Amendment guarantees the right to a jury trial for all crimes more serious than a petty offense. The Sixth Amendment guarantees the right to be represented by an attorney during a criminal proceeding and entitles indigent defendants to a state-appointed lawyer when they are charged with a misdemeanor or more serious offense (gideon v. wainwright, 372 U.S. 355, 83 S. Ct. 792, 9 L. Ed. 2d 799 [1963]). A defendant's right to a speedy and public trial in which she or he can cross-examine adverse witnesses and subpoena favorable witnesses is also protected by the Sixth Amendment.

The protections offered by the eighth amendment are more substantive. This amendment forbids the government from inflicting a punishment that is "cruel and unusual." The Eighth Amendment also prohibits the government from setting bail in an excessive amount and from imposing a fine that is disproportionate to the seriousness of the crime. Under the cruel and unusual punishments clause, the Supreme Court has ruled that it is not necessarily unconstitutional for the government to execute a mentally retarded person (Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct. 2934, 106 L. Ed. 2d 256 [1989]) or a juvenile above the age of 15 (Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306 [1989]).

Some of the protections offered by the Bill of Rights apply to civil proceedings. For example, the seventh amendment guarantees the right to a jury trial in civil "Suits at common law." In condemnation proceedings, the Fifth Amendment recognizes the power of eminent domain, by which the government may appropriate a piece of property owned by a private citizen and convert it to a public use. Concomitantly, the Fifth Amendment guarantees the right to "just compensation" for private landowners when the government exercises its power of eminent domain.

Due Process Clauses

Of all the liberties protected by the Bill of Rights, none has been a greater source of constitutional litigation than due process. The Fifth Amendment provides that no person shall be deprived of "life, liberty, or property, without due process of law." The Supreme Court has interpreted this provision to regulate actions taken by only the federal government, not the state governments (barron v. baltimore, 32 U.S. [7 Pet.] 243, 8 L. Ed. 672 [1833]).

Broadly speaking, the Due Process Clause of the Fifth Amendment guarantees litigants the right to be informed of any legal action being taken against them, and the opportunity to be heard during a fair proceeding in which they may assert relevant claims and defenses. Specifically, many procedural protections have been recognized by the Supreme Court as essential to the concept of due process. For example, in criminal cases, the Due Process Clause requires that the prosecution prove its case beyond a reasonable doubt before a conviction may be obtained. In civil cases, the Due Process Clause prohibits a court in one state from asserting jurisdiction over a resident in another state unless that resident has sufficient contacts with the jurisdiction in which that court sits.

The fourteenth amendment also contains a Due Process Clause. Whereas the Due Process Clause of the Fifth Amendment regulates only the federal government, the Due Process Clause of the Fourteenth Amendment regulates actions taken by state governments. During the twentieth century, the Supreme Court interpreted the Due Process Clause of the Fourteenth Amendment to make most of the liberties enumerated in the Bill of Rights applicable to the states.

Through a series of decisions, the Supreme Court has ruled that certain liberties guaranteed in the Bill of Rights are too fundamental to be denied protection by the state governments. Only the right to bear arms, the right to be indicted by a grand jury, the right to a jury trial in civil cases, the right against excessive bail and fines, and the right against involuntary quartering of soldiers have not been made applicable to the states. Because these constitutional guarantees remain inapplicable to state governments, the Supreme Court is said to have selectively incorporated the Bill of Rights into the Due Process Clause of the Fourteenth Amendment.

The Supreme Court has interpreted the Due Process Clauses to have a substantive content in addition to their procedural content. Procedurally, due process prescribes the manner in which the government may deprive persons of their life, liberty, or property. In short, the procedural guarantees of due process entitle litigants to fair process.

Substantively, the Due Process Clauses of the Fifth and Fourteenth Amendments protect persons from legislation infringing on certain individual rights. Such individual rights may be expressly enumerated in a constitutional provision, as are the liberties that are enumerated in the Bill of Rights and have been incorporated into the Due Process Clause of the Fourteenth Amendment. Since dred scott v. sandford, 60 U.S. (19 How.) 393, 15 L. Ed. 691 [1856]), where the Supreme Court recognized a slave owner's property interest in his slaves, the Due Process Clauses have been interpreted to protect other liberties that are not expressly enumerated in any provision of the federal Constitution.

These unenumerated rights have been derived from Supreme Court precedent, common law, history, and moral philosophy. Such rights, the Court said, "represent the very essence of ordered liberty" and embody "principles of justice so rooted in the traditions and conscience of our people as to be ranked fundamental" (Palko v. Connecticut, 302 U.S. 319, 58 S. Ct. 149, 82 L. Ed. 288 [1937]). Since the mid-1960s, the Supreme Court has relied on the concept of substantive due process to establish a general right to privacy that protects a woman's decision to terminate her pregnancy under certain circumstances (roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 [1973]).

Equal Protection Clause

The equal protection clause of the Fourteenth Amendment has been another bountiful source of litigation. Ratified during the aftermath of the Civil War along with the thirteenth amendment, which outlawed slavery, and the fifteenth amendment, which protected the right to vote from discriminatory infringement, the Fourteenth Amendment was designed to promote racial equality.

Until the middle of the twentieth century, the Supreme Court interpreted the Equal Protection Clause to permit state-implemented racial segregation. Then, in brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court declared that the institution of segregation is inherently unequal. Almost immediately after issuing the Brown decision, the Court began striking down state-implemented racial segregation at a host of public accommodations, including golf courses, beaches, and public schools. Pursuant to the Fourteenth Amendment, Congress has passed a number of civil rights statutes that protect African Americans and other racial groups from discrimination in the private sector. Title VII of the Civil Rights Act of 1964 (Pub. L. No. 88-352 [42 U.S.C.A. § 2000e et seq.]), for example, prohibits racial discrimination in private employment.

Persons of any race, creed, or ethnic origin may bring a claim against a state government for discriminating against them in violation of the Fourteenth Amendment. The Supreme Court has also relied on the Equal Protection Clause to invalidate state laws that discriminate on the basis of gender, state residency, and national citizenship, among other legislative classifications. In 1996 the U.S. Supreme Court struck down a Colorado constitutional amendment that discriminated against homosexuals, because it served no rational purpose (romer v. evans, 517 U.S. 620, 116 S. Ct. 1620, 134 L. Ed. 2d 855 [1996]). The civil rights act of 1871 (17 Stat. 13 [42 U.S.C.A. § 1983]) authorizes individuals to enforce the provisions of the Fourteenth Amendment against state governments.

Members of other minority groups, such as persons who are elderly or disabled, are protected from discrimination in both the public and private sectors by federal laws that Congress has passed pursuant to its constitutionally delegated powers. The Americans with Disabilities Act (Pub. L. No. 101-336 [ codified at 42 U.S.C.A. §§ 12111 et seq.]) and the Age Discrimination in Employment Act (Pub. L. No. 90-202 [ codified at 29 U.S.C.A. § 621 et seq.]) are two such laws.

Supremacy Clause

The supremacy clause in Article VI makes the Constitution, federal laws, and treaties "the supreme Law of the Land." Under this clause, state courts may not interpret the Bill of Rights, or any other constitutional provision, differently than does the Supreme Court. States may not provide less protection for individual liberties than is provided under the federal Constitution. However, state courts do retain the power to afford their residents greater protection for certain liberties established by their own state constitution than is afforded by the federal Constitution (Prune Yard Shopping Center v. Robins, 447 U.S. 74, 100 S. Ct. 2035, 64 L. Ed. 2d 741 [1980]).

Other Constitutional Provisions

The Nineteenth, Twenty-fourth, and Twenty-sixth Amendments provide that the right to vote shall not be denied to a U.S. citizen on account of gender, age (so long as the citizen is at least eighteen years old), or the failure to pay a poll tax. The twenty-first amendment repeals the eighteenth amendment, which banned the manufacture, sale, and transportation of intoxicating liquors, otherwise known as prohibition. The sixteenth amendment establishes the congressional power to lay and collect income taxes.

The Tenth and Eleventh Amendments attempt to preserve the federalist system created by the Constitution, whereby the state and federal governments share sovereignty and jurisdiction. Recognizing the threat presented by an omnipotent federal government, the tenth amendment reserves to the states all powers not delegated to the federal government. The text of the eleventh amendment restricts federal courts from hearing lawsuits against state governments brought by the residents of another state or the citizens of a foreign country. The Supreme Court has also interpreted the Eleventh Amendment to restrict federal courts from hearing lawsuits instituted by residents of the state being sued and lawsuits initiated by the governments of foreign countries.

further readings

Hall, Kermit L. 2002. Oxford Companion to American Law. New York: Oxford Univ. Press.

Posner, Richard A. 1999. An Affair of the State. Cambridge, Mass.: Harvard Univ. Press.

cross-references

Abortion; Administrative Law and Procedure; Age Discrimination; Commerce Clause; Congress of the United States;Constitution of the United States; Criminal Procedure; Custodial Interrogation; Disability Discrimination; Double Jeopardy; Federal Budget; Federalism; Freedom of the Press; Gay and Lesbian Rights; Incorporation Doctrine; Right to Counsel; Sex Discrimination; Speedy Trial.

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Constitutionalism

CONSTITUTIONALISM.

Constitutionalism is commonplace in modern political discourse in the West and beyond, yet it remains an elusive concept. Some have considered it impossible (and unnecessary) to give a definition of it. Nonetheless, one can discern several common features of the concept: the rule of law, not of men; limitations of political authority; the protection of civic rights and liberties; and rule based on the free consent of the ruled. Placing limitations on the exercise of political power is central to the notion of constitutionalism, and measures for that end include admonition to the deviant ruler; the assertion of the people's right to resist, punish, or depose a tyrant; the division of sovereignty via federalism; and the separation of powers, or other checks and balances.

Paradoxical as it may seem, the presence of a constitution is not necessarily a manifestation of constitutionalism. A constitutionalistic constitution forms a political entity, establishes its fundamental structure, and determines the limits within which power can be exercised politically. But some constitutions in the modern world, like those of the former Soviet Union and the People's Republic of China, do not limit the exercise of political power. A constitution of this sort is designed to constitute and empower the state, but not to control it.

Ancient Conceptions

The idea of controlling political power goes back to ancient Athens, where all state officials were accountable to the citizens who sat on the jury court. This jury-court system is the hallmark of the Athenian constitutionalism based on popular participation, yet it was never conceptualized by the leading Greek philosophers, including Plato (c. 428348 or 347b.c.e.) and Aristotle (384322 b.c.e.). For Plato, democracyrule by the ignorant masseswas fundamentally flawed. His vision of the ideal state, therefore, allows no space for an assembly or a court: a counterview to the contemporary practice of Athenian politics. Aristotle's tripartite conception of the just political structuremonarchy, aristocracy, and politeia resulted in the idea of the mixed constitution combining the virtues of three. This idea, ill defined by Aristotle, was often confused with the idea of the ideal constitution. The political practice of Republican Rome was described and celebrated by Cicero (10643 b.c.e.) as the "mixed constitution," which was, however, a pure aristocracy according to his own description. The nature of Republican Rome's political institutions remains elusive: in contrast with Cicero, Polybius (c. 200c. 118 b.c.e.) depicted them as part of a constitutionalist system, with the popular assembly controlling legislation and the election of magistrates.

Medieval Conceptions

The medieval model of constitutionalism is often associated with Magna Carta (1215); in it, the constitutionalistic idea that personal liberties should be protected from the authority of the prince by established legal procedures was already present. But the medieval contributions to constitutional theory may be found in the sphere of ecclesiology under the label of conciliarism. Conciliarism was the idea that the pope was not an absolute ruler but a constitutional monarch whose authority was ministerial and delegated to him for the common good of the church. The ultimate authority in the church, then, resides in the whole body of the believers or their representativesnamely, the general council. According to twelfth-century canonists, who grappled with the questions surrounding the possible abuse of power by the pope, the pope was an intrinsic part of a general council and the authority of the pope with a general council was greater than without: an argument parallel to the secular idea of the supremacy of the king-in-parliament. The divine nature of papal authority did not necessarily result in theocratic absolutism because of the idea that the power of jurisdiction came from God through the people; the power of the papal office originates from God, but the choice of a person who assumes the office depends on the consent of human cooperation.

The exaltation of papal sovereignty in thirteenth-century mendicant ecclesiology was countered by secular masters' "episcopalist" view: Christ conferred supreme authority not to Peter and his successors alone but equally to the twelve apostles and their successors; thereby ecclesiastical sovereignty was divided. All these elements of thought constituted conciliarism in the later Middle Ages, represented by such thinkers as Pierre d'Ailly (13501420) and Jean de Gerson (Jean Charlier; 13631429). The historian J. N. Figgis describes early modern constitutionalism as "the last effort of medieval constitutionalism," but the extent to which medieval constitutional thought influenced its modern counterpart remains debatable.

Early Modern Conceptions

Widespread administrative abuses and ecclesiastical corruption in late-sixteenth-century France generated a number of polemical pamphlets, which asserted the rights of the people to depose a tyrant. Huguenot political writers including François Hotman (15241590; Francogallia ), Théodore de Bèze, (Theodorus Beza; 15191605; The Rights of Magistrates ), and Duplessis-Mornay (Philippe de Mornay, Seigneur du Plessis-Marly; 15491623; Vindiciae contra tyrannos; A defense of liberty against tyrants) made important contributions to early modern constitutionalism by defining the right to resist and depose a tyrannical monarch as the ultimate guarantee of a set of particular controls on political authority. Their works rejected resistance by private individuals but asserted the right of resistance by constituted public power, especially of the Estates and lesser magistrates. Huguenot political thinkers upheld the doctrine of the division of sovereignty between the monarch, representative institutions, and lesser magistrates, whilst their contemporary Jean Bodin (15301596), a powerful proponent of the indivisibility of sovereignty, saw anarchy as the alternative to monarchy (just as Thomas Hobbes would do in the following century). Jean Bodin's theory of sovereignty circulated widely in seventeenth-century England, and served to bolster the idea of unlimited monarchical sovereignty manifested by James I (ruled 16031625) and Charles I (ruled 16251649). Sir Robert Filmer (c. 15881653) and Thomas Hobbes (15881679) conceptualized the doctrine of monarchical authority. But political authority in England had already been pluralistic, and this reality was crystallized in Sir Edward Coke's (15521634) idea that the English judiciary was independent from the crown as well as from Parliament. A more direct reaction to the Bodinian doctrine came from Johannes Althusius (Joachim Althaus; 15571638), who attributed indivisible sovereignty, unlike Bodin, to the people as a collective entity. The people as individuals are under the ruler, and yet the people as a collectivity is superior to the ruler. Althusius's novelty lies in his vision of federalism: he conceived a political community as a hierarchy of corporations, and took care to specify the way in which smaller communities are associated together in larger political entities, which resulted in a system of checks and balances.

Perhaps one of the most important sources for the authors of the American constitution was the epoch-making L'esprit des lois (1748; The spirit of the laws) written by Charles-Louis de Secondat, baron de Montesquieu (16891755). This eminent lawyer was deeply inspired by the English system of government that, in his view, had effectively secured what he called "political liberty." Montesquieu observed that the highest expression of political liberty was to be found in England. English constitutional practice had protected each citizen from each other, from foreign enemies of the state, and from the state itself. The key to this success, according to Montesquieu, was the functional separation of powers: legislative, executive, and judicial. The institutional separation of powers secured effective control of the coercive authority of the state: a significant departure from the "mixed constitution" model.

The late eighteenth century was the age of constitutions; the first modern written constitution was enacted in the United States of America (1787), followed by the French Declaration of the Rights of Man and the Citizen (1789). The Federalist, eighty-five papers written by Alexander Hamilton (17551804), James Madison (17511836), and John Jay (17451829), vindicated the theoretical foundations of the U.S. Constitution that underlined the limits on federal power by means of federalism, separation of powers, and the effective independence of political institutions. These institutional constraints were designed to augment the citizen's exercise of civic virtues to prevent monarchical despotism and to maintain liberty.

What constituted an important intellectual backdrop was republican constitutional ideas. Republicanism, upheld by influential figures such as Montesquieu, Jean-Jacques Rousseau (17121778), and Immanuel Kant (17241804), distinguished the people as a legislator (constituent power) from the people as a legislative power (constituted power) and envisioned the "good order" of societythat is, the fundamental principles of the working of a political society, or the means by which good laws and good rulers should be made. On the other hand, the U.S. Constitution was initially criticized for the omission of a specific statement concerning basic citizen rights. This was later drawn up as the Bill of Rights, now considered an integral part of the constitution.

Modern Conceptions

The U.S. Constitution generated reaction from British constitutionalists, and at the heart of the debate was the idea of sovereignty. Walter Bagehot (18261877), the author of The English Constitution, criticized the ambiguity of the locus of sovereignty in it, whereas Albert Venn Dicey (18261877) thought highly of the federal system of government that divided legislative powers between national and state authorities. The nightmare of totalitarianism in the first half of the twentieth century, on the other hand, demanded the vindication of constitutionalism, which was quintessentially crystallized in Charles H. McIlwain's Constitutionalism, Ancient and Modern.

In the early twenty-first century, issues over constitutionalism became ever more complex. Constitutionalism did not grow out of democratic thought, yet most contemporary states with a constitution are constitutional democracies. This demands that the relationship between constitutionalism and democracy be defined more precisely. The reconciliation between liberal right-based constitutionalism and republican democratic constitutionalism has also been sought. Furthermore, there exists a plurality of constitutions. The British model, for example, manifests parliamentary sovereignty, whereas the American model locates sovereignty in the people. The wide reception of constitutionalism beyond the West has created new varieties of constitutionalism (transformative constitutionalism). The emerging European Union after World War II, followed by the post-1989 developments in Eastern Europe in particular, has brought the debate over constitutionalism to an entirely new phase: constitutionalism beyond the framework of the nation state, and even the possibility of global constitutionalism.

Islamic Conceptions

The idea of limited government was not unknown in early Islamic political thought; the Muslim ruler was more limited than Christian princes in the sense that he had no power to legislate. The Holy Law (shari'a ) however, was not effective in limiting political power due to the dearth of institutional machinery that imposed the limitations.

In Persia (Iran) in the 1850s, the government reformed the legal system to limit the power of the 'ulama (scholar-teachers), and introduced the Western notion of constitutionalism. The promoters of constitutionalism, such as Malkom Khan (18331908) and Mirza Yusef Khan Mostashar od-Dowle (d. 1895), endeavored to demonstrate that the new idea was anchored in Islamic law and tradition. Mirza Yusef Khan's treatise, Yek Kalameh (n.d.; One word), contrasted Western prosperity with Persian stagnation and saw the solution of this problem in yek kalameh, a political structure based on law. He highlighted the virtues of the French constitution and demonstrated its compatibility with Islamic ideas. Such endeavors contributed to incorporating the Shiite religious group successfully into the constitutionalist movement, thereby paving the way to the Constitutional Revolution (19051911). Similarly, the young Ottomans, including Namik Kemal (18401888), who admired the constitution of the French Third Republic, reinterpreted passages in the Koran as arguments for constitutional democracy. Khayr al-Din al-Tunisi (1822/231890), who dreamed of the independence of the Islamic world community, was, like the Ottoman and Persian reformers, receptive to the Western constitutional idea that personal liberty and justice should be achieved by the rule of law. But his constitutionalism also echoed the Islamic intellectual tradition, especially the political ideas of Ibn Khaldūn (13321406).

Chinese Conception

The term that signifies "constitutional law" is of ancient origin in the Chinese language, and yet it denoted none of the Western ideas associated with modern Western constitutionalism. For the Chinese, constitutionalism was a Western import, dating back to the early nineteenth century. But the idea was not seriously assimilated until Japan established the first constitutional law in East Asia in 1889.

K'ang Yu-wei (18581927) was the leader of the Hundred Days of Reform, the movement for constitutional reform. He embraced the evolutionist view that constitutional change from monarchy to democracy was a historical necessity. His 1898 reform program, which included the creation of a parliament and the adoption of a constitution, was welcomed by the Emperor Kuang-hsü, (ruled 18751908), but its translation into practice was aborted by the coup d'état under the initiative of the Empress Dowager Tz'u-hsi (18351908).

Japan's victory in the war against the Russian Empire in 1905 demonstrated, in the eyes of the Chinese constitutional reformists, the victory of constitutionalism; this gave added momentum to the reception of the idea in China. The Ch'ing government drew up an "Outline of Constitution" modeled on the Japanese constitution, which never took effect, however, due to the 1911 revolution led by Sun Yat-sen (18661925) and the downfall of the Ch'ing dynasty. The Republic of China, established in 1912, promulgated a Provisional Constitution, the first modern constitution, modeled on the U.S. Constitution. Sun Yat-sen's Sanminzhuyi (1924; The three principles of the people)the Principle of Nationalism, the Principle of Democracy, and the Principle of People's Livelihoodwas inspired by Abraham Lincoln's (18091865) Gettysburg Address (1863), and his guiding principle of constitution-making known as the separation of five powersthe powers of administration, legislation, judiciary, examination, and impeachment, the last two being uniquely Chinesewas built upon Montesquieu's notion of the separation of powers.

Japanese Conceptions

The Japanese reception of Western constitutionalism, following the collapse of the Tokugawa Shogunal regime (16031867), was motivated by the diplomatic and military needs of national independence. The strengthening of the military needed to be augmented by "the concord of the People's mind (jinwa or jinmin kyôwa )," which could be achieved through the introduction of Western constitutional government. One of the pressing tasks in domestic politics was to settle the conflict between powers by entrusting supreme authority to parliament. Hence, in his Tonarigusa (1861; Grass next door), the first treatise on constitutionalism in Japan, Katō Hiroyuki (18361916) proclaimed the establishment of parliamentary politics. The perception of a constitution as the symbol of a modern Western-style state was widely shared by the political leaders of the new Meiji government, which led to the speedy creation of the Meiji Constitution, the first constitutional law in East Asia. Yet, the adoption of a "Westernized" constitution, officially an imperial gift to the Japanese subjects, was not accompanied by wide acceptance of the idea of controlling the power of the state. The prevalent Confucian language that equated the private with the evil and the public (namely, the state, not the civil society) with justice undercut the constitutional idea of the protection of individual liberties.

After Japan's defeat in World War II, constitutionalism, which had experienced a serious setback during the war, was rehabilitated under the new Constitution of Japan. This Constitution, however, was created not by popular demand, but by the initiative of the occupation authority. Ever since, Article 9, which proscribes the use of military means in diplomatic conflict, has been the focal point of post-war constitutional debate.

See also Democracy ; Republicanism ; State, The .

bibliography

Beer, Laurence Ward, ed. Constitutionalism in Asia: Asian Views of the American Influence. Berkeley: University of California Press, 1979.

Bellamy, Richard, ed. Constitutionalism, Democracy, and Sovereignty: American and European Perspectives. Aldershot, U.K.: Avebury, 1996.

Black, Antony. The History of Islamic Political Thought: From the Prophet to the Present. Edinburgh: Edinburgh University Press, 2001.

Castiglione, Dario, and Richard Bellamy, eds. Constitutionalism in Transformation: European and Theoretical Perspectives. Oxford: Blackwell, 1996.

Figgis, J. N. Political Thought from Gerson to Grotius, 14141625. 2nd ed. Cambridge, U.K.: Cambridge University Press, 1916.

Franklin, Julian, trans. and ed. Constitutionalism and Resistance in the Sixteenth Century: Three Treatises by Hotman, Beza, and Mornay. New York: Pegasus, 1969.

Gordon, Scott. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge, Mass.: Harvard University Press, 1999.

Lloyd, Howell, A. "Constitutionalism." In The Cambridge History of Political Thought, 14501700, edited by J. H. Burns and Mark Goldie, 254297. Cambridge: Cambridge University Press, 1991.

McIlwain, Charles H. Constitutionalism, Ancient and Modern. Rev. ed. Ithaca, N.Y.: Cornell University Press, 1947. Tierney, Brian. Religion, Law, and the Growth of Constitutional

Thought, 11501650. Cambridge, U.K.: Cambridge University Press, 1982.

Takashi Shogimen

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Constitutionalism

CONSTITUTIONALISM

CONSTITUTIONALISM. The modern concept of constitutionalism involves a political system of checks and balances, regulated by law and designed to protect the liberty of individuals and enable their participation in politics. A constitution may take written form, as in the American constitution of 1787, or it may consist of an assemblage of legal statutes and precedents collected over time, as in the United Kingdom. The word "constitutionalism" did not exist in early modern Europe, but most of the ideas behind it were frequently expressed. A constitution generally meant the creation of a law or statute. However, political institutions and individual liberty were long seen as the products of custom rather than deliberate lawmaking. Checks and balances were thought to be embodied in a limited monarchy or mixture of monarchy, aristocracy, and democracy. The idea of the separation of legislative, executive, and judicial powers did not become clear until the eighteenth century.

FRANCE

Claude de Seyssel's La grant monarchie de France (1519; The great monarchy of France) was representative of early French constitutional thought. Seyssel (c. 14501520) was a bishop and a jurist high in the counsels of Louis XII (ruled 14981515), and his book was intended as a guide for the next king, Francis I (ruled 15151547). He insisted that the king must observe what he called la police, meaning the institutional structure of the realm, which included such fundamental laws as the rules of royal succession and the inalienability of the royal domain. The king was restricted by two other "bridles" (freins), religion and justice. The clergy and the high court of the parlement were supposed to advise the king accordingly. In practice the regime of Francis I became increasingly authoritarian, and constitutional ideas were seldom voiced until the monarchy proved unable to cope with the civil and religious conflicts of the second half of the sixteenth century.

An important jurist who did not align himself with those who extolled the rights of the king was Charles Du Moulin (15001566). He agreed with Seyssel about the fundamental laws and demanded that the royal administration serve the cause of justice. Looking to remote Carolingian precedents, Du Moulin found supreme authority in early Frankish assemblies of the realm, and while he respected the royal authority, he saw the king's function as primarily administrative. His main interest lay in customary law, which he regarded as the result of consensual and contractual agreements. Property and private laws were distinct from public or enacted law. Du Moulin was at the center of a movement to record and standardize the multiple bodies of private customary law.

Another jurist of great distinction who stressed the importance of ancient custom was the Calvinist François Hotman (15241590), but, unlike Du Moulin, he placed it in the realm of public law. The radical message of his constitutional history of France, Francogallia (1573), was that French political institutions were derived from the customs of the Franks who had liberated Gaul from the Romans in the fifth century. Frankish assemblies had been the custodians of the fundamental laws and had had supreme authority over kings. The perfect and mixed constitution had long endured, but it had gradually been corrupted and ought, according to Hotman, to be restored. This message was adopted by Huguenot pamphleteers during the Wars of Religion, and it belonged more to polemical resistance theory than to objective constitutionalism.

In the late sixteenth century, concepts of the absolute sovereignty of the king were developed in opposition to doctrines of resistance. Constitutional ideas did not entirely disappear, however. They were expressed by the jurist Étienne Pasquier (15291615), who defended the authority of the crown while claiming the right of the so-called sovereign courts to review royal legislation. His Recherches de la France (Researches on France, published serially from 1560; first complete edition, 1621) held the parlement to be the true descendant of the Frankish assemblies and denied the role of the representative Estates-General, thought by Hotman to have inherited supreme power in the state from the Franks. Another jurist, Guy Coquille (15231603), presented a particularist kind of constitutionalism. Solicitor general in the duchy of Nevers, he defended and compared local rights and privileges enshrined in provincial codes of customary law. His Coutumes du pays et duché de Nivernais (1605; Customs of the region and duchy of Nivernais) and Questions et réponses sur les articles des coutumes de France (1611; Questions and answers on the articles of the customs of France) were widely respected.

SPAIN

The existence of representative assemblies (Cortes) and specified liberties (fueros) in the Iberian peninsula suggested a measure of constitutional balance, but an increasingly centralized royal bureaucracy tended to negate these institutions. For the most part constitutional thought in the sixteenth and early seventeenth centuries was general and speculative. Among such theorists were the Dominican Domingo de Soto (14951560) and the Jesuits Luis de Molina (15351600), Juan de Mariana (15361624), and Francisco Suárez (15481617). They all followed Scholastic tradition and held chairs of theology at Spanish or Portuguese universities. They were agreed that monarchical authority had originally been created by some kind of irrevocable communal contract, but only Mariana believed that this made the king the delegate of the people. While supporting royal authority, they thought that consent was needed for taxation. However, in his work De Legibus (1612; Concerning the laws) Suárez stated that the king could break the fueros in the interest of the common good. He admitted that in some states the community could reserve certain powers under the original contract and thereby create a mixed monarchy, but this was not the case with the Spanish crown. In contrast, Mariana placed greater restrictions on the king and even endorsed tyrannicide in his De Rege et Regis Institutione (1599; On the king and his education). He illustrated these limitations in his Historiae de Rebus Hispaniae (1592; Histories of the affairs of Spain).

GERMANY

Complex as were the institutions of Castile and the more contractual arrangements in Aragón, Catalonia, and Valencia, they were simplicity itself when compared with the tortuous organization of the German empire. Tensions between the emperor and the seven electoral princes, together with disputes between the non-electoral princes and the free cities, who formed the other two houses of the representative diet, were complicated by local leagues, administrative circles, and a double system of justice. During the conflicts of the Reformation some arguments were made in terms of constitutional law, but no theorist was able to rationalize the constitution of the empire as a coherent whole. In the seventeenth century various jurists tried to adapt the definition of sovereignty offered by Jean Bodin (15301596) to Germany, but this produced more heat than light. The only persuasive solution was advanced by Samuel Pufendorf (16321694), who was a professor of law at Heidelberg and later at Lund before becoming court historiographer at Stockholm and then at Berlin. Law and history complemented each other in a mind that adjusted political taxonomy to change over time. His De Jure Naturae et Gentium (1672; Law of nature and of nations) was comparable to the celebrated work of an earlier Dutch jurist and historian, Hugo Grotius (15831645), De Jure Belli ac Pacis (1625; On the law of war and peace). Law and history were combined in Pufendorf's De Statu Imperii Germanici (1667; On the constitution of the German empire). There he combined the concept of a federal state, similar to the constitution of the Netherlands, with a distinction between regular and irregular forms of government. The empire "constituted itself from a regular form of monarchy and an irregular form of state, which is no longer a limited monarchy, whatever appearance of such it may have, but nor is it a federation of several states, since it represents something between the two." Pufendorf preferred monarchy and abhorred radical resistance theory, but he approved of the English Revolution of 1688.

ENGLAND

The settlement after the Revolution of 1688 was the culmination of political conflict and constitutional speculation. The main issues had been the relationship between the monarch and the other two components of Parliament, the Lords and the Commons, together with a peculiarly English concept of the common law as the controlling element in the constitution. England was usually seen as a mixed or tempered monarchy that allowed the ruler a special prerogative but gave supreme authority to the king in Parliament. On the one hand Parliament's function was regarded as the making of positive law; on the other it was viewed as a high court that found and declared ancient customary law.

In the fifteenth century Sir John Fortescue (c. 1394c. 1476), chief justice of the common law court, the King's Bench, declared in his De Laudibus Legum Angliae (first printed 1537; Praises of the laws of England) that statutes were made by the will of the king with the assent of the realm represented in Parliament, and that England was governed by a participatory and regal system (dominium politicum et regale), in contrast with the pure monarchy (politicum regale) in France. With the assumption of royal power over the church by the Tudors during the Reformation the idea of legislative sovereignty in a nation-state came near to realization. Sir Thomas Smith (15131577), a jurist, diplomat, and secretary of state, declared in De Republica Anglorum (1583; On the commonwealth of the English) that Parliament was "the most high and absolute power in the realm." At the same time Smith was a vigorous defender of the royal extra-parliamentary prerogative.

With the advent of the first two Stuart kings (James I, ruled 16031625; Charles I, ruled 16251649) the crown adopted the theory of the divine right of kings and asserted royal authority over Parliament. At the same time the common lawyers claimed the supremacy of immemorial customary law. Their leader was Sir Edward Coke (15521634), who, after his dismissal as chief justice of the King's Bench in 1616, became a member of the Commons and a defender of parliamentary privilege. As a judge he was even prepared to disallow a statute if, in his view, it contravened common law. After governing without Parliament for eleven years, Charles I gradually yielded ground and agreed to such measures as the attainder and execution of his first minister and the abolition of the conciliar courts established under the Tudors as rivals of the common law courts.

Just before the outbreak of civil war in 1642, Parliament presented the king with nineteen propositions further restricting his rule. In reply moderate advisers of the king made the tactical error of admitting that the constitution was indeed a mixed one, and that the Lords and Commons held coordinate, instead of subordinate, power with the crown. For its part Parliament did not try to depose the king at this point but tried to attract moderate opinion by asserting a difference between the office and person of the king and its right to exercise the former while he remained under the influence of socalled "malignants." After the civil wars Charles I was tried and executed. England became a republic while a series of constitutional experiments were attempted under the aegis of the parliamentary general, Oliver Cromwell (15991658). There were even some radical proposals, never implemented, to create manhood suffrage and annual parliaments.

The civil wars were accompanied by a vast polemical literature supporting the royal and parliamentary causes. A more detached commentary on the constitution was written by an obscure Wiltshire clergyman, Philip Hunton (c. 16041682). His Treatise of Monarchy (1643) favored Parliament while treating the crown with respect. Established by a fundamental contract, the constitution of England was a mixed monarchy wherein the king controlled the executive while king, Lords, and Commons shared legislative power. In a mixed monarchy the ruler was limited by definition, but a limited monarchy need not be mixed if the contract gave authority to the crown alone but limited it by fundamental laws. Since Charles I had invaded the rights of the two houses, Parliament was acting in defense of the constitution, but there could be no superior tribunal to judge the king, else England would not be a monarchy at all. Despite its moderate tone, A Treatise of Monarchy provoked much royalist criticism and was republished during the political troubles of Charles II (ruled 16601685).

Under the Restoration the constitution resumed the forms it had taken before the civil wars, including some of the concessions made by Charles I. The struggle to exclude from the succession the king's Roman Catholic brother, the future James II (ruled 16851688), stimulated the composition of two works that were later assumed to justify the socalled Glorious Revolution of 1688: Discourses concerning Government (first published 1698) by the republican statesman Algernon Sidney (16221683) and Two Treatises of Government (1690) by the physician and philosopher John Locke (16321704). Sidney, who was well-read in the resistance literature of the French Wars of Religion, popularized the so-called "Gothic" theory of ancient European institutions, based on Hotman's idea in Fran-cogallia that the Germanic tribes invading the Roman empire had brought with them admirable constitutions. Locke based his political theory on the protection of indefeasible individual rights of life, liberty, and property enjoyed in a sociable but inconvenient state of nature. By an original contract individuals had set up a community in which the majority were empowered to set up a form of government. The outcome was rather similar to Hunton's constitutionalism, since power was divided between an executive and a shared legislature. Locke added a third element, the "federative," by which he meant power to protect the state against external enemies. The community had no right to resist the established powers, but if the government collapsed through its own divisions, society had a constituent right to set up a new regime.

The final element in early modern constitutionalism was the separation of powers doctrine, hinted at but not developed by Hunton, Locke, and others. It was defined by Charles-Louis de Secondat, baron de Montesquieu (16891755) in the eleventh book of his De l'esprit des lois (1748; Spirit of the laws). To complete the system of checks and balances Montesquieu added the judicial element to the legislative and executive, thus incorporating the shade of the English common law myth. He also repeated the legend of the Gothic constitution, declaring that the origin of the most satisfactory kind of government was to be found in the forests of Germany. Although seen by some as conservative and aristocratic, Montesquieu's theory was to influence the written constitutions of the American and French Revolutions.

See also Absolutism ; Authority, Concept of ; Bodin, Jean ; Democracy ; Divine Right Kingship ; English Civil War and Interregnum ; Grotius, Hugo ; Law ; Liberty ; Locke, John ; Mariana, Juan de ; Monarchy ; Montesquieu, Charles-Louis de Secondat de ; Natural Law ; Political Philosophy ; Republicanism ; Sovereignty, Theory of ; Tyranny, Theory of .

BIBLIOGRAPHY

Primary Sources

Elton, G. R., ed. The Tudor Constitution: Documents and Commentary. 2nd ed. Cambridge, U.K., 1982.

Hotman, François. Francogallia. Edited by Ralph E. Giesey. Translated by J. H. M. Salmon. Cambridge, U.K., 1972. With commentary by the editors.

Kenyon, J. P., ed. The Stuart Constitution: Documents and Commentary. 2nd ed. Cambridge, U.K., and New York, 1986.

Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge, U.K., and New York, 1988. With commentary by the editor.

Montesquieu, Charles-Louis de Secondat, baron de. The Spirit of the Laws. Translated by Thomas Nugent. New York, 1949.

Seyssel, Claude de. The Monarchy of France. Translated by J. H. Hexter. Edited by Donald R. Kelley. New Haven, 1981.

Secondary Sources

Church, William Farr. Constitutional Thought in Sixteenth-Century France: A Study in the Evolution of Ideas. New York, 1941.

Dufour, Alfred. "Pufendorf." In The Cambridge History of Political Thought, 14501700. Edited by J. H. Burns. Cambridge, U.K., 1991.

Friedrich, Carl J. Constitutional Government and Democracy: Theory and Practice in Europe and America. Boston, 1941.

Lloyd, Howell A. "Constitutionalism." In The Cambridge History of Political Thought, 14501700. Edited by J. H. Burns. Cambridge, U.K., 1991.

McIlwain, Charles Howard. Constitutionalism: Ancient and Modern. Rev. ed. Ithaca, N.Y., 1958.

Pocock, J. G. A. The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century. 2nd ed. Cambridge, U.K., and New York, 1987.

Scott, Jonathan. England's Troubles: Seventeenth-Century English Political Instability in European Context. Cambridge, U.K., and New York, 2000.

Shklar, Judith N. Montesquieu. Oxford, 1987.

J. H. M. Salmon

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Constitutionalism

Constitutionalism

BIBLIOGRAPHY

Modern nation-states enact constitutions to bring society from its natural state of chaos to organization based on the rule of law. Unlike the war of all against all described by the English philosopher Thomas Hobbes (15881679), John Lockes (16321704) view of the state of nature recognized that humans have organized in family and cultural units throughout history. Though unnecessary for protection from outsiders, society could benefit from a social contract. Participants must agree to create structure (a legislature to make decisions), to designate an impartial judge, and to establish enforcement powers (an executive branch) in order to sustain a peaceful society. These entities, according to Locke, can only be created through the efforts of the members of a society to contract for continued institutional support.

The social contract is often embodied by a constitution, a set of principles by which a group of people agrees to govern and be governed. In order to operate as a constitution, these rules need not take the form of a written document. The social contract metaphor is limited in several ways, including, in most circumstances, the lack of third-party enforcement. It is more important that constitutional law represents the conventions accepted in a society, and that societal order is coordinated around these conventions. A dualist understanding views constitutions as frameworks within which other politics and institutions operate. They establish second-order rules that must be followed when making more specific laws.

By constraining rulers, constitutions aim to protect citizens rights. When a constitution stipulates judicial review, citizens can petition courts to invalidate laws that violate constitutional principles. Although, as with the unwritten British constitution, not all provisions are judicially enforceable, they may nonetheless serve as focal points for legal interpretation and political debate, as well as indicators of which government interventions will be accepted by citizens.

A constitution serves, in some sense, to codify existing social relations. Constitutional design, therefore, is constrained by internal and external power dynamics. Resulting agreements reflect these relationships rather than pure legal ideals. As a result, underrepresented groups continue to be excluded, unless they gain influence by extraconstitutional means.

Russell Hardin (1999) sees constitutions more as models of mutual advantage than as binding contracts. It is usually in the best interest of all parties to uphold the rules that maintain order within their society. There are relatively few occasions when it would be more difficult to follow existing rules than to renegotiate the terms of a constitution.

Those rare circumstances on which recoordination is less costly for society are constitutional moments (Ackerman 1991). Changes in power alignments, in relation to internal politics or external influence, may necessitate a change in the substance of a constitution. These moments may involve major amendment to an existing constitution, as in the postCivil War United States, or they may require a complete overhaul of the constitution, as in South Africa following the inclusion of the black population as full citizens in the 1990s. At these times, questions of legitimacy arise because the constitutional authors have not been elected by a process representing the new social contract, and may not represent the people who will be bound by the new document. If a new constitution is to remain a stable set of rules for the polity, it must represent a credible commitment by citizens and leaders who will not have an incentive to override or renegotiate it, or resort to violence. Such constitutional moments may arise in the context of postwar reconstruction, independence movements, domestic upheaval, or union of existing polities. In each situation, citizens encounter distributional gains and losses reflecting societal change.

SEE ALSO Judicial Review; Locke, John

BIBLIOGRAPHY

Ackerman, Bruce. 1991. Foundations. Vol. 1 of We the People. Cambridge, MA: Harvard University Press.

Hardin, Russell. 1999. Liberalism, Constitutionalism, and Democracy. New York: Oxford University Press.

Locke, John. [1690] 1988. Two Treatises of Government. Ed. Peter Laslett. New York: Cambridge University Press.

Mark Axelrod

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constitutional law

constitutional law Procedures and doctrines defining the operation of the constitution of a state. In states with a written constitution, courts often have specific powers relating to the constitution and likely points of conflict. In the USA, where there is a federal system of government, the Supreme Court often resolves conflict between the individual states and the central government. In countries without a written constitution, such as Britain, constitutional law is more imprecise and problems are addressed within the political process.

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Constitutional Law

Constitutional Law

The written text of the state and federal constitutions. The body of judicial precedent that has gradually developed through a process in which courts interpret, apply, and explain the meaning of particular constitutional provisions and principles during a legal proceeding. Executive, legislative, and judicial actions that conform with the norms prescribed by a constitutional provision.

Justice Scalia Debates President of American Civil Liberties Union

In October 2006, Justice Antonin Scalia engaged in a debate with Nadine Strossen, the president of the American Civil Liberties Union, during which Scalia defended his approach to interpreting the Constitution. The one-hour debate, which was considered a cordial affair, was televised on C-SPAN. During this time, the two exchanged their views on such issues as the role of the federal judiciary, abortion rights, race questions, and religious issues.

The 70-year-old Scalia was appointed to the Supreme Court by President Ronald Reagan in 1986. In the 20 years since that time, Scalia has become one of the most outspoken members of the Court. The conservative main-tains a staunch stance that the Constitution should be interpreted rigidly and strictly, and that the meaning of the text should be derived from the 18th-century context when it was written. Scalia has clashed with both liberal and moderate justices in the past.

Strossen criticized Scalia for protecting certain privacy rights, such as those found in the Fourth Amendment, while failing to protect others, such as the right of consenting adults to engage in sexual relations. "Many people, and including those of us in the ACLU, are very distressed at your failure to find within the constitution protection for what we think is at least as important a type of privacy, namely the right of consenting individuals—mature individuals in their own homes—to decide what they are going to see, or read, to decide with whom they are going to live, what kind of sexual intimacies or relationships they are going to engage in," she said. "Isn't this, in fact, a confluence of the First Amendment and the Fourth Amendment? That government should not have the right to criminalize certain materials that we read, and should not have the right to criminalize certain sexual intimacies."

Scalia responded by saying that it was not up to the federal judiciary to make decisions about what the law should be. "I'm in the business of enforcing the laws," Scalia, who also rejected the notion that he is a "strict constructionist," said. "What democracy means is that on controversial issues, even stuff like homosexual rights, abortion, whatever, we debate with each other, and persuade each other, and vote on it. Either our representatives, or through a constitutional amendment in the states, we decide the question."

Scalia also argued against the notion that the Constitution is an evolving document, saying that such an approach puts the justices in the position of having to decide how the Constitution evolves. "Why in the world would you want nine people from a very uncharacteristic class of society—to whit, nine lawyers—to decide how the constitution evolves?," he said. "It means whatever they think it ought to mean."

Strossen responded by stressing that federal judges were precisely the best individuals to interpret the text of the Constitution. "There are some rights that are so fundamental that no majority can take them away from any minority, no matter how small or unpopular that minority might be," she said. "And who is better positioned to represent and defend and be the ultimate backstop for rights of individuals and minorities than those who are not directly accountable in the electoral process, namely federal judges?"

With respect to abortion rights, Scalia has maintained that the decision in Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) should be overruled. He also dissented from the decision in Lawrence v. Texas, 539 U.S. 558, 123 S. Ct. 2472, 156 L. Ed. 2d 508 (2003), in which the Court struck down a Texas statute proscribing homosexual sodomy. In his debate with Strossen, Scalia again stressed that these are issues that should be addressed by legislative bodies. "Nobody ever thought that [abortion or gay rights] had been included in the rights contained in the Bill of Rights, which is why abortion and homosexual sodomy were criminal for 200 years. Now whether that's a good idea or a bad is not what I'm talking about. That's not my job to say that. It is my job to say whether the Bill of Rights has taken it out of the realm of democratic debate. Just because you feel strongly about it, it isn't necessarily in the Bill of Rights."

Scalia has similarly taken a hard stance against using race as a factor for diversity in schools. He dissented in the 2003 case of Grutter v. Bollinger, 539 U.S. 306, 123 S. Ct. 2325, 156 S. Ct. 304, in which the Court upheld the University of Michigan Law School's policy of considering race as a factor for achieving a diverse student body. In the debate, Scalia noted, "The Constitution very clearly forbids discrimination on the basis of race. It doesn't seem to me to allow Michigan to say we think it's good to discriminate on the basis of race when you want to make sure everyone is exposed to different backgrounds. We cannot use race as the test of diversity."

The debate took place at the beginning of a term where the Court would consider some significant cases addressing abortion and school integration. In a series of abortion cases in the past, Scalia often voted with the minority, while moderate justice Sandra Day O'Connor famously served as the swing vote. However, the Court's two newest members, Chief Justice John Roberts and Samuel Alito, are both more conservative than O'Connor, and commentators expected some cases heard during the 2006 term to provide clear indications of how conservative the Court may have become.

Six months after the debate, Scalia voted with the majority in Gonzales v. Carhart, Nos. 05-380, 05-1382, 2007 WL 1135596 (Apr. 18, 2007), in which the Court upheld a partial-birth abortion ban. The decision was immediately criticized by women's rights groups as having damaged the rights established in Roe v. Wade.

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Constitutional Law

CONSTITUTIONAL LAW

The U.S. Constitution, written in 1787 and ratified in 1788, was—in its own words—the "supreme Law of the Land" and required that all judges, state and federal, abide by it. The Constitution created a system of government and explained how Congress and the president would be elected, how judges would be chosen, and what the powers of the national government would be. Article I listed both the powers of Congress and the limitations on Congress and the states. Article IV set out how the states were to interact with each other. In 1791, three years after the Constitution went into effect, the states ratified ten amendments, which became known as the Bill of Rights. Most of these placed limitations on the powers of Congress and the judiciary. At the time of its writing and ratification, most American saw the Constitution as creating a government of limited powers. As Charles Cotes-worth Pinckney told South Carolina's legislature, "it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states."

While limited, the powers the national government had were "the supreme law of the land." There was uncertainty as to what those powers were. In the modern period one thinks of the U.S. Supreme Court as being the institution to determine the powers of the national government. But in the first decade under the Constitution, Congress was also deeply involved in debating the meaning of the Constitution and how it should be implemented, interpreted, and understood.

congress and the executive branch

The first great constitutional debate in the United States concerned what would become the Bank of the United States. In 1791 Secretary of the Treasury Alexander Hamilton, who had been a delegate to the Constitutional Convention, proposed the chartering of a national bank to regulate the nation's finances and stimulate commerce. In Congress, Representative James Madison of Virginia opposed Hamilton's plan on constitutional grounds. Madison argued that the Constitution did not give Congress the power to create a bank or to charter any corporation. That was not one of the enumerated powers found in Article I, section 8 of the Constitution, and thus Madison said it was beyond the scope of congressional power. Congress, however, passed the bank bill over Madison's objections.

When the bill reached his desk, President George Washington was uncertain as to its constitutionality and asked for advice from his cabinet. This led to the first great debate over constitutional law in the nation. Secretary of State Thomas Jefferson asserted that "the incorporation of a bank, and the powers assumed by this bill, have not … been delegated to the United States, by the Constitution." He argued that such powers were not "specifically enumerated" and that they could not be construed from the general taxing power "for the purpose of providing for the general welfare." Jefferson cited the Tenth Amendment, which stated that "the powers not delegated to the United States … are reserved to the States respectively, or to the people." Banks, Jefferson believed, as well as any other incorporated enterprise, were the business of the states. Jefferson also denied that the bank was "necessary and proper" for conducting the business of the United States government, although he admitted it might be "convenient." Jefferson argued that the national government was free to use state-chartered banks for its financial operations.

Alexander Hamilton argued that the Constitution contained "implied powers" as well as "express ones." Hamilton believed that the bank was both necessary and proper. He pointed out that the existing state banks might disappear and that Congress would then have no banking institutions to use. Jefferson's view of "necessary" was too narrow, Hamilton said, and he claimed that "necessary often means no more than needful, requisite, incidental, useful, or conductive to." Surely, by this line of reasoning, the bank could be considered "necessary." Hamilton forcefully argued that the test of a federal law was whether its policy or program related to a power of Congress and not whether the Constitution specifically authorized the policy or program. "If the end be clearly comprehended within any of the specified powers, and if the measure have an obvious relation to that end, and is not forbidden by any particular provision of the constitution—it may safely be deemed to come within the compass of the national authority."

Hamilton won out, and Washington signed the bank bill into law. The force of Hamilton's arguments became clearer twenty-five years later, when James Madison urged Congress to pass another law creating what became the Second Bank of the United States. Madison, who had once opposed the bank on constitutional grounds, now argued that the constitutional question was "precluded … by repeated circumstances of the validity of such an institution in acts of the legislative, executive, and judicial branches, of the Government … [and] a concurrence of the general will of the nation."

In 1803 Madison and Hamilton debated each other in the press over the power of the president to conduct foreign policy. Writing as "Pacificus," Hamilton argued that the Constitution gave the president authority to conduct foreign policy on his own. Hamilton outlined the powers of the president set out in Article II of the Constitution, including his role as "Commander in chief of the army and navy of the United States and of the militia of the several states when called into actual service of the United States." This led him to assert that the "Executive Power of the Nation is vested in the President; subject only to the exceptions and qualifications which are expressed in" the Constitution. This broad reading of presidential power in foreign policy dovetailed with Hamilton's expansive views of the power of Congress to pass laws to stimulate the economy, charter banks, and so on. Madison responded by arguing for separation of powers and equality between Congress and the president. Relying on the power of Congress "to declare War" found in Article I, section 8 of the Constitution and the requirement that the Senate ratify treaties, he asserted that the Constitution required that Congress be involved in all issues of war and peace. This debate over interpretation of the Constitution was not settled in 1793, and it has remained an issue ever since.

In 1798 Congress passed the Sedition Act after rancorous debates over its constitutionality. James Madison and Thomas Jefferson both argued against the constitutionality of the Sedition Act through the Virginia and Kentucky Resolutions (1798) that they authored. Their arguments centered on the powers of Congress and the residual powers of the states. Curiously, although they mentioned the First Amendment's protection of freedom of the press, both Madison and Jefferson focused most of their analysis on the lack of explicit congressional power to regulate the press in Article I, rather than on the prohibition in the Bill of Rights. Both Madison and Jefferson also stressed the Tenth Amendment, which reserved powers to the states, including, they believed, the power to punish seditious libel. In the end, neither the Federalists who supported the law nor the Democratic Republicans like Jefferson and Madison who opposed it, argued in favor of freedom of expression as a constitutional right.

constitutional interpretation

While leading politicians debated the powers of Congress and the executive branch, the Supreme Court began to build a body of case law to flesh out the meaning of the Constitution. The first major case, Chisholm v. Georgia (1793), involved a lawsuit against the state of Georgia by a citizen of South Carolina. The U.S. Constitution gave the federal courts jurisdiction in cases "between a State and Citizens of another State." The Court interpreted this to mean that citizens of one state could sue other states in federal courts. Georgia resisted this outcome, and most state and federal politicians rejected this interpretation of the Constitution. Congress quickly reversed the decision by sending to the states the Eleventh Amendment, which stated that the federal courts had no jurisdiction to hear suits against states that were initiated by private citizens.

In Marbury v. Madison (1803) the Court held a minor provision of the Judiciary Act of 1789 to be unconstitutional. The case involved William Marbury, an appointee of John Adams, who had been confirmed by the Senate but did not receive his official commission before Adams left office. When the Jefferson administration refused to give him the commission, Marbury asked the Supreme Court to issue a writ of mandamus requiring Secretary of State James Madison to give it to him. The Judiciary Act of 1789 had authorized the Supreme Court to issue writs of mandamus, but in Marbury, Chief Justice John Marshall ruled that Congress did not have the power to expand the original jurisdiction of the Court beyond the limited instances set out in the Constitution. In doing this, Marshall actually expanded the power of the Court by asserting its right to declare an act of Congress unconstitutional. But he accomplished this in such a way that neither the president nor Congress, which was controlled by Jefferson's supporters, could object, since the outcome of the case was what Jefferson wanted. While seen as a major development in constitutional law—because it set the precedent for judicial review of congressional statutes—the Court would not declare another act of Congress unconstitutional for more than half a century, when it decided in Dred Scott v. Sand-ford (1857) that Congress could not prohibit slavery from the federal territories.

In Ex parte Bollman (1807) the Court offered a strict interpretation of the treason clause. In doing so, he overruled the executive branch's use of the clause to incarcerate Dr. Justas Erik Bollman, a close associate of former Vice President Aaron Burr, who Jefferson believed was part of a treasonous conspiracy. Chief Justice Marshall ruled that the treason clause required evidence that "war" had "actually [been] levied against the United States." This would require "an actual assemblage of men" for the purpose of war. By interpreting the Constitution's clause on treason in this narrow way, Marshall prevented future misuse of the clause as a political tool.

In Fletcher v. Peck (1810) the Marshall Court overturned an important state statute on constitutional grounds. The case involved the famous Yazoo land fraud. In 1795 the Georgia legislature sold about thirty-five-million acres of state lands to a group of speculators at one and a half cents an acre. With one exception, every member of the legislature that passed this law had accepted a bribe from the speculators. In 1796 a new legislature declared the previous sale null and void, but it did not return the half million dollars the state had received for the land. By this time much of the land had been sold and even resold. Robert Fletcher had purchased land from Peck that had been sold twice before the legislature attempted to nullify the original sale. The Supreme Court ruled that the nullification of the sale violated the contracts clause of Article I, section 10 of the Constitution. That clause prohibited the states from "impairing the Obligation of Contracts." This was a significant development in constitutional law because it established the precedent that the Supreme Court could strike down acts of the states.

In United States v. Hudson and Goodwin (1812), the Court reaffirmed its power to overrule acts of the executive branch. In 1806 the U.S. attorney in Connecticut prosecuted Barzillai Hudson and George Goodwin, the editors of the Connecticut Courant, for their criticism of President Jefferson. Unlike the situation during the last years of the Adams administration, there was no sedition law in place. Thus, this prosecution was done under common law. It illustrated the fact that Jefferson's opposition to the Sedition Act was not based on support of a free press or a belief that the opposition party has a right to freedom of expression. However, in 1812 the U.S. Supreme Court ruled that there could be no common law of crimes at the federal level, and that therefore all prosecutions at the federal level had to be based on statutes. This was an important limitation on the executive branch, just as Marbury v. Madison was a limitation on Congress.

emergence of federal supremacy

In Fairfax's Devisee v. Hunter's Lessee (1813), the Marshall Court once again overturned a state law and asserted the supremacy of the national constitution. This decision marked the beginning of a ten-year period in which the Court strengthened its own powers and the powers of Congress at the expense of the states. By the end of this period, the Court had established the meaning of a number of clauses of the Constitution. Some of the cases decided in this period would remain viable precedents over the next two centuries.

Fairfax's Devisee involved land in Virginia owned by Thomas, Lord Fairfax, a Loyalist who fled to Britain when the Revolution began. Subsequently, Virginia seized some of the land and eventually sold it to David Hunter. Fairfax's heirs resisted the change of ownership, and Hunter sued to eject the tenants from the land. In 1810 the Virginia Court of Appeals upheld Hunter's claim, asserting that Virginia had legally confiscated the Fairfax lands. By this time much of the Fairfax land had been sold to investors who included John Marshall and his brother, James. Thus, when the case reached the U.S. Supreme Court, Chief Justice Marshall did not participate in it. In 1813 the Supreme Court reversed the decision. The Court's jurisdiction was based on section 25 of the Judiciary Act of 1789, which gave the Supreme Court jurisdiction to review cases from the highest court of a state if the case involved a federal statute, a provision of the U.S. Constitution, or—as it did in this case—a treaty. The Court held that under the Treaty of Paris (1783) ending the American Revolution and Jay's Treaty (1794), Virginia was obligated to return Loyalist lands seized during the Revolution. The Court held that the supremacy clause of the Constitution required that the states respect these treaty obligations. The U.S. Supreme Court then returned the case to the Virginia court to restore the land to the Fairfax heirs and those who had purchased land from the Fairfax estate. In 1815 the Virginia Court of Appeals declared that the U.S. Supreme Court had no jurisdiction to review this case or any other cases it decided. The Virginia court in effect declared section 25 of the Judiciary Act of 1789 to be unconstitutional.

Not surprisingly, the case came back to the U.S. Supreme Court in 1816, this time as Martin v. Hunter's Lessee. Here Justice Joseph Story wrote a powerful opinion supporting the supremacy clause and the power of the federal judiciary to review cases from the states involving the Constitution and federal law. Story asserted that "the absolute right of decision, in the last resort, must rest somewhere," and that "somewhere" had to be the U.S. Supreme Court. Martin was one of Story's most important opinions and a key case in the development of the federal judiciary. Since 1816 it has been cited more than 125 times by the U.S. Supreme Court and more than 575 times by other courts at the state and federal level. Despite its age, from 1990 to 2000 the Supreme Court cited the case eight times.

In 1819 the Court heard two cases of monumental importance. The first was McCulloch v. Maryland (1819), which—many scholars have argued—contains Chief Justice John Marshall's most powerful and important opinion. The case involved the constitutionality of the Bank of the United States, which Maryland tried to destroy by taxing its bank-notes. Reading more like a state paper than a legal opinion, Marshall set out why the states could not undermine federal law, where the federal government had power to legislate. The "great principle" of the Constitution, he explained, was "that the Constitution and the laws made in pursuance thereof are supreme; that they control the Constitution and laws of the respective States, and cannot be controlled by them." Because the "power to tax involves the power to destroy," no state could tax any federally created institution. Marshall also set out why the necessary and proper clause of the Constitution gave Congress enormous flexibility to pass laws on all sorts of matters not explicitly mentioned in the Constitution. Marshall rejected a narrow reading of the Constitution that limited congressional power to what was explicitly set out in the document. He denied that a constitution could "partake of the prolixity of a legal code" and noted that a constitution listing all the things that the Congress could do "could scarcely be embraced by the human mind." He reminded readers "that it is a constitution we are expounding" and as such it had to have open-ended language that would allow for flexibility and growth. This was true because it was "a constitution intended to endure for ages to come, and, consequently, to be adapted to the various crises of human affairs."

This powerful endorsement of congressional supremacy and the right of the Supreme Court to strike down state laws angered states' rights advocates, especially in Virginia. However, the case is perhaps the most important in Supreme Court history. Marshall's opinion has been cited by the Supreme Court more than 350 times and by other state and a federal courts more than 2,500 times. Between 1990 and 2000, the U.S. Supreme Court cited the case 30 times.

In Dartmouth College v. Woodward (1819) the Court interpreted, as it had in Fletcher v. Peck, the meaning of the contracts clause of Article I, section 10 of the Constitution. New Hampshire had revoked the charter of Dartmouth College and created a new institution, Dartmouth University, as a state-supported entity. The old trustees of Dartmouth College sued William Woodward to regain control of their college. Woodward had been an officer of the old Dartmouth College, but abandoned the college, and took its records, seal, and other materials with him when he agreed to serve the new Dartmouth University. In their suit the college trustees sought to recover these records as they gained control of the college. The Court held that the charter creating Dartmouth College was a contract between the government and the founders of the college, and as such the state could not simply take over the college. Another key opinion in the development of the Constitution, it has been cited more than one hundred times by the U.S. Supreme Court and more than fifteen hundred times by other courts.

In Cohens v. Virginia (1821) the Court reaffirmed its right, and power, to review the decisions of state courts, even as it upheld the state courts. The Cohen brothers had been convicted in Virginia of selling tickets for a Washington, D.C., lottery in violation of that state's antilottery laws. They argued that the lottery was created by Congress and thus was exempt from state law. The Virginia court upheld this conviction and Virginia argued that the U.S. Supreme Court had no jurisdiction to even hear the case because of the Eleventh Amendment, which prohibited the federal courts from hearing suits brought against the states by private citizens from other states. The Supreme Court did not accept this analysis. Instead, the Court held that if the state began a suit or prosecution, then the citizen defendant could appeal to the federal courts if there was a federal issue. Although emphatically asserting the right of the Supreme Court to hear the appeal, Marshall sided with the state of Virginia. The lottery ticket was not like the Bank of the United States, which Congress had chartered to operate in every state. Furthermore, there was no reason, under the necessary and proper clause, why lottery tickets for Washington, D.C., should be sold in Virginia. Virginia politicians and judges grumbled at the reaffirmation of the supremacy clause and the power of section 25 of the Judiciary Act, even as the Supreme Court upheld Virginia on the substantive issue. The Cohen brothers paid their fines, while the Supreme Court went on to cite the precedent more than 175 times in subsequent cases, while other courts cited it more than 1,500 times.

In Gibbons v. Ogden (1824) the Marshall Court issued its most popular opinion. In this case the court interpreted the commerce clause to ban New York's grant of a monopoly to operate steamboats in the state. The opinion led to increased competition in transportation, which improved commerce, trade, and travel. In reaching this decision, Chief Justice Marshall developed an expansive interpretation of the commerce clause and emphatically asserted the power of Congress in areas of law delegated to Congress. He wrote that "the sovereignty of Congress, though limited to specified objects, is plenary as to those objects."

After Gibbons the Court continued to develop and refine its jurisprudence on commerce, contracts, and other provisions of the Constitution. But by 1824 the Marshall Court's jurisprudential legacy on constitutional issues was for the most part clear. Marshall had strengthened Congress and the executive branch in their contests with the states. He had defined the powers of Congress and also forcefully asserted the right and duty of the Court to settle constitutional disputes between the states and the national government. Most importantly, he had made the Court into a coequal branch of the government, one that would be respected and usually obeyed.

See alsoAlien and Sedition Acts; Bill of Rights; Chisholm v. Georgia; Constitutional Convention; Constitution: Eleventh Amendment; Dartmouth College v. Woodward; Fletcher v. Peck; Gibbons v. Ogden; Hamilton's Economic Plan; Marbury v. Madison; Martin v. Hunter's Lessee; McCulloch v. Maryland; States' Rights; Supreme Court .

bibliography

Baxter, Maurice G. The Steamboat Monopoly: Gibbons v. Ogden, 1824. New York: Knopf, 1972.

Newmyer, R. Kent. Supreme Court Justice Joseph Story: Statesman of the Old Republic. Chapel Hill: University of North Carolina Press, 1985.

——. John Marshall and the Heroic Age of the Supreme Court. Baton Rouge: Louisiana State University Press, 2001.

Urofsky, Mel, and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2nd ed. New York: Oxford University Press, 2002.

White, G. Edward. The Marshall Court and Cultural Change, 1815–35. New York: Macmillan, 1988.

Paul Finkelman

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Constitutionalism

CONSTITUTIONALISM

Virtually all the Arab countries, as well as Turkey and Iran, have promulgated formal, written constitutions. As they and other Muslim nations have learned, however, a constitutional document does not always reflect or ensure constitutionalism, just as constitutionalism does not always require a written constitution. Constitutionalism is the idea that political order ought to be subject to a higher authority beyond the arbitrary human will expressed through an autocrat, a minority faction, or a democratic mob. Although constitutionalism is commonly identified with liberal democracy, any regime that provides for limited and accountable government, adherence to the rule of law, and the protection of fundamental rights to all its citizens may be said to be constitutionalist. Defined in this way, constitutionalism has had a troubled history in the countries of the Middle East, and no country has to date fully implemented constitutionalist principles.

The earliest constitutionalist experiments in Arab states occurred in Tunisia and Egypt. In 1857, under pressure from European governments, Muhammad Bey issued the ˓Ahd al-Aman, or Fundamental Pact, under which all residents of Tunisia were granted equal rights of security, legal redress, and employment. In 1861, Tunisia promulgated the first constitution in the Muslim world, under which the legislative and judicial powers of the bey and his ministers were limited by the establishment of a Grand Assembly. The assembly consisted of sixty members, appointed by the bey for five-year terms, and all drawn from the country's elite. The constitutional experiment lasted but three years, collapsing in 1864 in the wake of popular demonstrations in the provinces.

Constitutional reforms would not resume until 1955, as the French protectorate over Tunisia was nearing an end. The constitution promulgated in June 1959 declared Tunisia a republic, with executive power vested in a president and legislative power in a National Assembly, both elected by universal suffrage. The judiciary was declared to be independent. The constitution was significantly amended in 1988 to strengthen executive control over the legislature, and to specify that the prime minister succeeds the president in case of death or disability.

Egyptian constitutionalism gained ground during the reign of the Khedive Isma˓il, fueled mainly by the notables' growing concern with Egyptian indebtedness to European powers. In 1866, Isma˓il agreed to create the Consultative Assembly of Deputies, comprised of Egyptian notables, and in 1878 he formed the Council of Ministers, to which he transferred a great deal of executive authority. In 1882, when Isma˓il's successor, Tawfiq, attempted to reverse his predecessor's concessions, the Assembly of Deputies pressured the khedive to approve their draft constitution. Under this document, the Assembly was to be an elective body whose members served five-year terms. Both it and the Council of Ministers could initiate legislation, subject to the final approval of the khedive. Most importantly, the prime minister could be summoned and questioned by the Assembly, and if a conflict arose between the two, the Assembly's will was to prevail.

The 1882 constitution was never fully implemented, and when the British occupied Egypt the same year, it was suspended. Shortly after independence, Egypt promulgated a new constitution in April 1923, which established the supremacy of the king over the cabinet and the parliament. Following the Free Officers' overthrow of the monarchy in 1952, a new constitutional charter was enacted in January 1956 that declared Egypt a republic, with most powers vested in the president. A new constitution was drafted in 1971, soon after Anwar Sadat's assumption of the presidency. This document retains a strong presidency but adds provisions for an expanded role for the judiciary, including the creation of a Supreme Constitutional Court. The courts' powers have effectively been curtailed, however, by the invocation of Emergency Laws by Hosni Mubarak, ostensibly to combat terrorism within the country.

Iraq's constitution was drafted and promulgated in 1925, while the country was still under a British mandate. It created a constitutional monarchy, with a strong king and a bicameral legislature. Once the British mandate ended, the king's authority over the cabinet was enhanced through constitutional amendments in 1943. The July 1958 revolution that ended monarchical rule effectively ended constitutionalism as well. From 1958 to 2003, the country was run by the Revolutionary Command Council (RCC). The RCC's authoritarian rule was formalized in the 1970 "interim" constitution adopted by the Ba˓thists, which continued in place until it officially became Iraq's constitution in 1990. Amendments in 1995 made the election of the president subject to national plebiscite, but in effect bolstered the authoritarian rule of Saddam Husayn by eliminating the RCC's ability to dismiss the president.

The Lebanese constitution is among the most intriguing of all the Arab republics. Given the deep sectarian cleavages in the Greater Lebanon that was created under the French mandate, the 1943 National Covenant established a consociational democracy. Seats in the Chamber of Deputies were divided according to a 6:5 formula, giving the Christian population a permanent majority in the legislature over the Muslims. The president had to be a Maronite Christian, the prime minister a Sunni Muslim, and the speaker of the parliament a Shi˓ite Muslim. This "elite cartel" continued to function until the outbreak of the civil war in 1975. Under the Ta˓if Agreement of 1989 that ended the civil war, the sectarian apportionment of high offices was retained, but the Christian-Muslim allocation of seats in the legislature was brought to parity and the powers of the prime minister relative to those of the president were substantially increased.

All of the extant Arab monarchies, including Morocco, Jordan, Kuwait, and the other emirates of the Persian Gulf, have adopted constitutional instruments that make token attempts at creating popularly elected legislatures, but which retain effective powers in the hands of the monarch. Kuwait is a notable, but qualified, exception; the emir has battled parliaments demanding a greater role since the 1960s. The parliament's authority was enhanced following the liberation of Kuwait from Iraqi control in 1991. As for Saudi Arabia, no real constitutional document was enacted until 1992, when the Basic Laws codified the complete dominance of the Saudi ruling house in the country's administration. The king appoints the Consultative Council and heads the Council of Ministers.

Turkey's experience with constitutionalism began with the Ottoman constitution of 1876, which formalized the central place of the sultan in the government of the empire, but created a bicameral parliament to share the sultan's legislative functions. Sultan ˓Abd al-Hamid II suspended this constitution within months of its enactment. It was revived, with modifications that enhanced executive powers, following the Young Turks revolt in 1908. Turkey's transformation to a secular republic began with constitutional enactments passed by the Grand National Assembly following the empire's defeat in the First World War. In January 1921, the Law of Fundamental Organizations vested legislative authority in the Grand National Assembly. Another decree in November 1922 abolished the sultanate. Finally, on 20 April 1924, following the abolition of the Ottoman caliphate, the constitution of the Turkish republic was announced.

By the 1950s, Turkey had evolved firm republican and what seemed to be strengthening democratic institutions, going so far as to see the triumph of an opposition party in the 1950 general elections. Increasing paralysis in the parliament caused by party differences led to the first military intervention in 1960. The military seized power again in 1971 and 1980, leading to the proclamation of a constitution that legitimated the military's political role in 1982. In 1995, with Turkey attempting to join the European Union, constitutional amendments attempted to lessen the political profile of the military.

Iran's constitutional revolution of 1906 launched that country's attempt at constitutional monarchy. In 1925, the constitution was amended to effectuate the transfer of monarchical authority from the Qajar dynasty to the new Pahlevi dynasty that was founded by the erstwhile minister of war, Reza Khan. The only period during the Pahlevi era when constitutional practices were even partially implemented was from 1941 to 1953, when the young Muhammad Reza Shah was not strong enough to exert his will against the Majlis, the national parliament. Through the late 1960s and early 1970s, the shah's rule became increasingly despotic.

In January 1979, the monarchy was overthrown in the Islamic revolution led by Ayatollah Khomeini. The constitution of the Islamic Republic of Iran was enacted in December 1979. Its most notable feature was the implementation of direct rule by the Shi˓ite religious scholars, chiefly in the institution of the vali-ye faqih, or the supreme religious guide of the nation. Significant amendments were made in 1989 to allow for a transfer of supreme authority after Khomeini's impending death. The changes did nothing, however, to alleviate the fundamental tension built into the 1979 constitution, namely, the rivalry between two executive authorities, the president and the supreme religious guide.

See alsoMajlis ; Modernization, Political: Administrative, Military, and Judicial Reform .

BIBLIOGRAPHY

Arjomand, Saïd Amir. "Constitutions and the Struggle for Political Order: A Study in the Modernization of Political Traditions." Archives Européennes de Sociologie 33 (1992): 39–82.

Brown, Nathan J. Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government. Albany: State University of New York Press, 2002.

Brown, Nathan J. Dustur: A Survey of the Constitutions of the Arab and Muslim States. Leiden: Brill, 1966.

Sohail H. Hashmi

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Constitutionalism

Constitutionalism

The term constitution first appeared during the 1700s in connection with the written constitutions of the United States and France. However, the idea of constitutionalism, a philosophy of government based on the rule of law, can be traced back to ancient Greece and the writings of Aristotle. A constitutional government can be democratic or under the rule of a monarch, but everyone involved is bound by certain basic principles and procedures. This type of government stands in opposition to tyranny, in which a single person holds absolute power.

Historians have noted that tyrants were generally on the rise in Renaissance Italy. However, some Italian cities, including Florence and Venice, maintained constitutional regimes*. Florence had the Ordinances of Justice drawn up in the 1290s. The Ordinances barred the nobility from the city's ruling councils and established what was called a government of the people—although it did not really include all the people. Amended from time to time, the Ordinances served as a kind of constitution in Florence for about 300 years. Leonardo Bruni, in his Eulogy of Florence (1405), praised the city's form of government. He called it a republic, using a term drawn from ancient Rome.

In 1434 the Medici family came to power in Florence. Although these rulers preserved the forms of the republic, some Florentines viewed them as tyrants. The people of Florence overthrew the Medici in 1494 and restored the republic. With a Grand Council of 1,500 citizens, the new republic gave more Florentines a voice in government than any previous regime. However, it lacked the military strength to fight off invading troops from Spain.

Niccolò Machiavelli, a statesman and political thinker from Florence, analyzed the weakness of the city's constitution in his book The Prince (1513). Machiavelli believed that a lasting government could only be established through the actions of a powerful leader. Once founded, the state could develop a constitution. Several other Italian writers of the early 1500s devoted thought to the question of the ideal constitution. Their views helped shape the democratic political ideas that emerged in the United States and France in the 1700s.

The first hints of constitutionalism arose in France during a troubled period in the 1500s. The Protestant reformer John Calvin observed that people had a duty to obey their king, but that governing bodies also had a duty to resist kings who become tyrants. Political writer Jean Bodin disagreed, arguing that power must rest completely in the monarch. Some groups in France found justification for the monarchy in the Fundamental Laws, an unwritten constitution that had helped preserve the state through a series of wars with England in the 1300s and 1400s. The exact content of the Fundamental Laws was a matter of dispute, but most people agreed on one law: that the throne should always be passed down through male heirs.

The Netherlands developed a constitutional regime more or less by accident. Between 1568 and 1648, while seeking independence from Spain, the nation was ruled by a representative body called the States General. At first, its members opposed a republican form of government. They wanted to bring in a ruler from Germany, France, or England who would recognize the traditional privileges of the States General. However, when an acceptable ruler was not found, the Netherlands settled for a republican form of government in which the noble House of Orange played a leading role.

(See alsoFlorence; France; Government, Forms of; Monarchy; Netherlands; Political Thought; Venice; Wars of Italy. )

* regime

government in power at a particular time

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Constitutionalism

CONSTITUTIONALISM

Constitutionalism is a term not altogether congenial to American lawyers. It seems to share the characteristics of other "isms": it is neither clearly prescriptive nor clearly descriptive; its contours are difficult to discern; its historical roots are diverse and uncertain. Legal realist walton h. hamilton, who wrote on the subject for the Encyclopedia of the Social Sciences, began his article in an ironic vein: "Constitutionalism is the name given to the trust which men repose in the power of words engrossed on parchment to keep a government in order."

Historians, on the other hand, employ the concept with some confidence in its meaning. American historians tend to use it as a shorthand reference to the constitutional thought of the founding period. European historians have a somewhat harder time. Given a largely unwritten constitution and the sovereignty of Parliament, what does it mean to refer to British constitutionalism? What is the significance of Dicey's distinction between the "conventions of the constitution" and the "law of the constitution"? How meaningful is the distinction? As Dicey noted: "Whatever may be the advantages of a so-called unwritten constitution, its existence imposes special difficulties on teachers bound to expound its provisions." French authors view constitutionalism as an important element of the French Revolution, but run into difficulties as they contemplate the fact that, since the constitution of 1791, France has had fifteen of them—and by no means all democratic. German historians tend to restrict the use of the term Konstitutionalismus to the Central European constitutional monarchies of the nineteenth century, though German-language equivalents for constitutionalism (Verfassungsstaat, Verfassungsbegriff) are frequently encountered in the literature. The German constitutionalist trauma is, of course, the ease with which the Weimar constitution, in its time viewed as one of the most progressive in the world, could be brought to collapse at the hands of determined enemies who then managed to organize arbitrariness in the form of law.

Constitutionalism has both descriptive and prescriptive connotations. Used descriptively, it refers chiefly to the historical struggle for constitutional recognition of the people's right to "consent" and certain other rights, freedoms, and privileges. This struggle extends roughly from the seventeenth century to the present day. Its beginnings coincide with the "enlightenment" of the seventeenth and eighteenth centuries. Used prescriptively, especially in the United States, its meaning incorporates those features of government seen as the essential elements of the American Constitution. Thus f. a. hayek called constitutionalism the american contribution to the rule of law.

Constitutionalism obviously presupposes the concept of a constitution. a swiss authority of some influence in the american revolution, emerich de vattel, in his famous 1758 treatise, The Law of Nations or the Principles of Natural Law, provided a definition: "The fundamental law which determines the manner in which the public authority is to be exercised is what forms the constitution of the State. In it can be seen the organization by means of which the Nation acts as a political body; how and by whom the people are to be governed; and what are the rights and duties of those who govern. This constitution is nothing else at bottom than the establishment of the system, according to which a Nation proposed to work in common to obtain the advantages for which a political society is formed."

This rather neutral definition has to be read against the background of Vattel's theory of natural law. Vattel recognized the right of the majority to reform its government and, most important, excluded fundamental laws from the reach of legislators, "unless they are expressly empowered by the nation to change them." Moreover, Vattel believed that the ends of civil society were "to procure for its citizens the necessities, the comforts, and the pleasures of life, and in general their happiness; to secure to each the peaceful enjoyment of his property and a sure means of obtaining justice; and finally to defend the whole body against all external violence."

Later in the eighteenth century strong prescriptive elements became part of the very definition of a constitution. Two examples are equally famous. On October 21, 1776, the town of Concord, Massachusetts, resolved "that a Constitution in its Proper Idea intends a System of Principles Established to Secure the Subject in the Possession and enjoyment of their Rights and Privileges, against any Encroachment of the Governing Part." (See concord resolution.) Article 16 of the French Declaration of the Rights of Man of 1789 put it even more bluntly: "A society in which the guarantee of rights is not assured nor the separation of powers provided for, has no constitution."

Although it would be impractical to make such substantive features a necessary part of one's definition of a written or unwritten constitution, a proper understanding of constitutionalism as a historical phenomenon depends on them. Constitutionalism does not refer simply to having a constitution but to having a particular kind of constitution, however difficult it may be to specify its content. This assertion holds true even in the case of the interplay of old forces (monarchies and estates) with new forces (the middle class in particular) which characterized the emergence of constitutional monarchies in Central Europe during the nineteenth century. Seen from a constitutionalist perspective, many of the German constitutional monarchies were influenced by concepts that had much in common with constitutionalist thought. The most important of these concepts was the Rechtsstaat: a state based on "reason" and a strict regulation of government by law.

The concepts of a constitution and of fundamental laws have not had a constant meaning over time. Since the eighteenth century (though not before), it has become customary to translate Aristotle's word politeia as "constitution": "A constitution is the arrangement of the offices in a polis, but especially of the highest office." This definition precedes Aristotle's differentiation among six forms of government—those for the common good (monarchy, aristocracy, and "polity") and their perversions, which serve individual interests (tyranny, oligarchy, and democracy). Aristotle thus introduced substantive, not merely formal, criteria into his teachings about constitutional arrangements.

Cicero is usually credited with first giving the Latin term constitutio something like its modern meaning. About a mixed form of government, he said in De Re Publica: "This constitution has a great measure of equability without which men can hardly remain free for any length of time." Indeed, Roman law was characterized by constitutional notions. The constitution of the Roman republic, putting other substantive arrangements aside, was marked by the power of the plebs to pass on laws which bound the entire Roman people. While this republican prerogative of the plebs was later replaced by Senate law-making and eventually by the emperor's legislative monopoly, its status is perhaps best illustrated by Augustus's repeated refusal, on "constitutional" grounds, to accept extraordinary powers to renew law and morals. Though this Augustan reticence may have been a triumph of form over substance, "triumphs" of this kind have frequently illustrated how constitutional notions have become deeply entrenched.

In subsequent Roman usage the term constitutio came to identify imperial legislation that preempted all other law. The understanding of constitutio as signifying important legislation was retained during the Middle Ages in the Holy Roman Empire, in the church, and throughout Europe. A well-known English example is the Constitution of Clarendon issued by Henry II in 1164.

In England, the modern use of constitution as referring to the nature, government, and fundamental laws of a state dates from the early seventeenth century. In the House of Commons, in 1610, James Whitelock argued that the imposition of taxes by James I was "against the natural frame and constitution of the policy of this kingdom, which is ius publicum regni, and so subverteth the fundamental law of the realm and induceth a new form of State and government."

In Europe, perception that some laws were more fundamental than others were well established before the eighteenth century. magna carta (1215), the petition of right (1628), and the habeas corpus act (1679) are the best known English illustrations of this point. In addition, by their coronation oaths English kings obliged themselves "to hold and keep the laws and righteous customs which the community of [the] realm shall have chosen." Even if the law could not reach the king, the king was viewed as under the law (and, of course, under God). The bounds of the king's discretion were defined by the ancient laws and customs of England or, put differently, the common law. By the seventeenth century, edward coke was even prepared to claim that acts of Parliament were subject to review under the common law (and natural law).

Though the status of French kings was considerably more mysterious and legal constraints on them were far fewer than in England, they too were viewed as subject to fundamental laws. The French Protestant political theorists of the sixteenth century expressed far-reaching views on the matter. François Hotman subtitled the XXVth chapter of the third edition of his Francogallia (1586): "The king of France does not have unlimited domain in his kingdom but is circumscribed by settled and specific law."

Beginning in the seventeenth century, the struggle over the limits of power, the ends of government, and the limits of obedience was frequently expressed in terms of social contract theory. Johannes Althusius, Hugo Grotius, johnlocke, and Jean-Jacques Rousseau all influenced the civil struggles of their age. Although the differences among these writers are profound, all of them stipulate a social compact as the foundation for the constitutional arrangements of the state. While such a contract is not necessarily based on an assumption of popular sovereignty, a social contract without the assumed or actual consent of "the people" or their representatives is unthinkable. Once this notion spread widely, it was difficult to maintain the divine right of kings, and it became almost irresistible to relocate sovereignty in the people—Thomas Hobbes notwithstanding.

One must not confuse the concept of a social contract with that of a constitution. For the "contractarians," constitutions follow from the social contract; they are not identical with it. Although the social contract is mostly a logical stipulation, at times the contract seems real enough, embodying or justifying specific constitutional arrangements. The Glorious Revolution in England, the American Revolution, the French Revolution—all appealed to the social contract.

The Glorious Revolution, like the English Civil War before it, was seen in contractarian terms. The Convention Parliament of 1689 resolved that James II "having endeavored to subvert the constitution of the kingdom by breaking the original contract between king and people … has abdicated the government and the throne is hereby vacant." The Declaration of Rights of 1689 was part of Parliament's contract with William and Mary and, later that year, was incorporated into the act of Parliament known as the bill of rights. After reciting Parliament's grievances against the absolutist tendencies of James II, the Bill of Rights prohibited the suspension of the laws by regal authority; provided for the election and privileges of Parliament (including a prohibition of prerogative taxation); and dealt with the right to petition, excessive bail, and the jury system.

Although this catalogue of constitutional concerns is modest by contemporary standards, the Bill of Rights, in conjunction with other British traditions and the "mixed government" confirmed by the Glorious Revolution, led montesquieu to celebrate England as the one nation in the world "that has for the direct end of its constitution political liberty." Montesquieu concluded his chapter on "The Constitution of England" in The Spirit of the Laws with the wry comment that it was not his task to examine whether the English actually enjoyed this liberty. "Sufficient it is for my purpose to observe, that it is established by their laws; and I inquire no further." When Montesquieu's book was published in 1748, some questions about constitutional liberty in England might indeed have been examined. For instance, the right to vote was extremely restricted and even that small electorate was not consulted when, by the Septennial Act of 1716, Parliament extended its own duration by another four years. For the American colonists who fought more against the British Parliament than against their monarch, this example of the "sovereignty of Parliament" marked the limit of British constitutionalism. As james madison wrote in the federalist #53, citing the Septennial Act: "Where no constitution paramount to the government, either existed or could be obtained, no constitutional security similar to that established in the United States, was to be attempted."

American constitutionalism during the colonial and revolutionary periods included the notions of a constitution as superior to legislation and the notion of a written constitution. As concerns the "writing" of constitutions, Gerald Stourzh has remarked, for the period after 1776, that Americans clearly differentiated "between the functions of constitution-making (with an additional differentiation between drafting and ratifying functions), of amending constitutions, and of legislating within the framework of the constitution."

One formal element in the American colonies was bound to have a profound impact on American constitutionalism, especially its choice of written constitutions as the means for anchoring the organization of their governments and the protection of their rights and privileges. colonial charters, fundamental orders, and other written documents were used in the establishment of the colonies. These contracts between rulers and ruled provided for the government of the colonies, secured property rights, and even extended the guaranteed liberties and privileges of the English constitution. The 1629 charter of massachusetts bay is an important early example.

Pennsylvania, however, provides the most vivid illustration of the essential features and conundrums of American constitutionalism. In England, in 1682, a "frame of government of the province of Pensilvania" was agreed to by the Governor, william penn, and "divers freemen" of the province. It was a revision of an earlier plan drawn up by Penn which he had called "Fundamental Constitutions of Pennsylvania." The frame of government was replaced by a new frame as early as 1683. Its place was taken in 1701 by the Pennsylvania Charter of Privileges, granted by Penn during his second visit to the province and formally approved by the General Assembly. (See pennsylvania colonial charters.) Though the focus here is on the Charter of Privileges, William Penn's preface to the Frame of Government deserves quotation: " Any government is free to the people under it (whatever be the frame) where the laws rule, and the people are a party to those laws, and more than this is tyranny, oligarchy, or confusion." Having invoked the notions of government of laws and popular consent, Penn went on, however, to warn against excessive optimism about the rule of law : "Governments, like clocks, go from the motion men give them; and as governments are made and moved by men, so by them they are ruined too." It is difficult to imagine a better reflection on the challenges faced by the American constitution makers of the eighteenth century.

The Pennsylvania Charter of Privileges of 1701 was a remarkable constitutional document. First of all, the charter itself was adopted in a constitutional manner, according to the provisions for amending the Frame of Government. Second, it began, not with the organization of government, but with an issue of fundamental rights: it guaranteed the freedom of conscience and made all Christians eligible for public office. Third, the charter provided for a unicameral representative assembly to be elected annually by the freemen with the right to initiate legislation and with all parliamentary powers and privileges "according to the Rights of the free-born Subjects of England, and as is usual in any of the King's Plantations in America. " Fourth, far ahead of its time, it gave to all "criminals" "the same Privileges of Witness and Council as their Prosecutors." Fifth, it guaranteed the "ordinary Course of Justice" in all disputes concerning property. Sixth, the proprietor committed himself and his heirs not to breach the liberties of the charter; anything done to the contrary should "be held of no Force or Effect." Seventh, the liberties, privileges, and benefits granted by the charter were to be enjoyed, "any Law made and passed by this General Assembly, to the Contrary hereof, notwithstanding." Eighth, the charter could be amended only by a vote of " Six Parts of Seven " of the Assembly and the consent of the governor. Ninth, the guarantee of liberty of conscience was placed even beyond the power of constitutional amendment "because the Happiness of Mankind depends so much upon the Enjoying of Liberty of their Consciences."

This colonial charter, granted by a feudal landowner, embodies the most significant elements of American constitutionalism as it emerged in the course of the century—the concept of consent and the concept of a written constitution sharply differentiated from ordinary legislation and with provisions for its amendment and a bill of rights, however rudimentary. Indeed, by placing the liberty of conscience beyond the amending power it posed the ultimate conundrum of constitutionalism—the possibility of unconstitutional constitutional amendments.

The concept of consent had direct consequences for questioning the powers of Parliament over America and for the American understanding of representation. In terms of constitutionalism, the most important part of the long list of grievances against George III with which the declaration of independence began (following the model of the Declaration of Rights of 1689) was the passage which stated that the king had "combined with others to subject us to a jurisdiction foreign to our constitutions, and unacknowledged by our laws; giving his assent to their acts of pretended legislation." The nation began with an assertion of the right to consent.

In the decades of constitution-making following independence the main organizational task of American constitutionalism was to spell out in detail the implications of popular sovereignty for the structure of government. What, for instance, should follow from the famous formulation in the virginia declaration of rights, of June 12, 1776, "that all power is vested in, and consequently derived from, the people; the magistrates are their trustees and servants, and at all times amenable to them"? Four subjects were of overriding importance: the franchise; the separation of powers; the amending process; and the protection of individual rights.

Political status in the colonies had mostly depended on property ownership, and the Revolution had not done away with these requirements. The federal constitutional convention of 1787 could not agree on who should have the right to vote. Sovereignty of the people did not mean all the people. But who should have the right to vote was discussed frequently and with great seriousness. The voters of the Massachusetts town of Northampton, for instance, concluded in 1780 that restricting the franchise for the Massachusetts house to freeholders and other men of property was inconsistent with the concepts and principles of native equality and freedom, the social compact, personal equality, and no taxation without representation. Their objections pertained only to elections to the house; indeed, they were based on the notion that in a bicameral legislature one chamber should represent property, the other persons. A few more decades had to elapse before property and taxpaying qualifications disappeared. The franchise was expanded in all Western societies in the course of the nineteenth century. The earliest and most inclusive expansion, however, came in the United States—although even here the vote was withheld from women, american indians, slaves, and, as a rule, free blacks.

The colonists widely believed that their governments were "mixed" in accord with the British model. A London compendium from 1755 said of the colonial governments: "By the governor, representing the King, the colonies are monarchical; by a Council they are aristocratical; by a house of representatives, or delegates from the people, they are democratical." While this was more an "ideal type" than an accurate description of the constitutional facts, the post-Revolution problem for those who had grown up within the tradition of mixed or balanced government was how to institute it under radically changed conditions. The question was not really whether to have balanced government, though some advocates of "simple" government existed.

The separation of powers doctrine, as put forward most influentially by Montesquieu, sought to limit power by separating factions and, to some extent, associating them with the executive and legislative functions of government. To Montesquieu the separation of powers was a necessary if not a sufficient condition of liberty. By 1776 the American constitutional problem had become not the separation of "powers" but the distribution of power flowing from a single source—the people.

Though the Americans continued to view the separation of powers as necessary to liberty and therefore indispensable to constitutionalism, they faced a formidable challenge in attempting to implement the concept. The towns of Essex County, Massachusetts, wrote "the Essex Result," a veritable dissertation on the subject in voicing their objections to the proposed Massachusetts constitution of 1778, which they considered insufficiently mindful of the separation of powers. They propounded the principle "that the legislative, judicial, and executive powers are to be lodged in different hands, that each branch is to be independent, and further, to be so balanced, and be able to exert such checks upon the others, as will preserve it from dependence on, or an union with them."

Practical problems were inevitable. The different powers of government do not imply clearly differentiated functions; they will necessarily be closely intertwined—especially if one adds the notion, urged in the Essex Result, of checks and balances. In the major state constitutions enacted in 1776 and immediately after, the legislative branch usually dominated, but the constitutions distinguished conceptually between legislative, executive, and judicial functions. They made members of one branch ineligible to serve in the others, and they gave some measure of autonomy to the judiciary. However, with respect to such crucial features as the structure and election of the executive and the power of appointments, they differed radically one from the other.

As successful revolutionaries, the Americans faced a difficult political task. They needed to justify the power of the people to change their government and at the same time to assure the stability of the new order based on popular sovereignty. If, as a practical matter, consent meant consent by a majority, was that majority not also at liberty to change the states' new constitutions? If not, why not? Vattel had struggled valiantly to develop a satisfactory framework for thinking about constitutional change, though without much success. His argument in The Law of Nations that the legislative power could not amend the constitution is hardly a model of tight reasoning. Concluding his essay, Vattel observed: "However, in discussing changes in a constitution, we are here speaking only of the right; the expediency of such changes belongs to the field of politics. We content ourselves with the general remark that it is a delicate operation and one full of danger to make great changes in the State; and since frequent changes are hurtful in themselves, a Nation ought to be very circumspect in this matter and never be inclined to make innovations, except for the most urgent reasons or from necessity."

In America, thomas jefferson was the foremost theorist of constitutional change. He believed that each generation has "a right to choose for itself the form of government it believes most promotive of its happiness.…" The same man who provided us with this theory of constitutional change wanted to be remembered in his epitaph for the virginia statute of religious liberty (1786), which ended with a proviso that sought to secure the statute forever: we "do declare, that the rights hereby asserted are of the natural rights of mankind, and that if any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right."

In a way, the matter was simple. Jefferson and many of his fellow citizens were for change, stability, and inalienable rights all at the same time. These disparate aims were somewhat reconciled in practice by having the constitutions provide for their own amendment and for bills of rights. This course had important practical implications: it legitimized the concept of constitutional change and thus dramatically reduced the need for revolutions; and it advised the majority that it had no power to regulate at will the structure of government or basic rights of individuals. Enlightened America was anything but unanimous on the status of specific rights. Not every state constitution had a bill of rights; those that did almost always included the liberty of conscience, freedom of press, trial by jury, and protection of property. Some of the rights, as Penn and Jefferson suggested, were considered so fundamental that their amendment would conflict with the very nature of constitutional government.

The constitutional convention of 1787 and the main features of the federal constitution, after a decade of state constitutions, further defined American constitutionalism. The Constitution precariously provided for a mode of ratification hardly in accord with the articles of confederation. Among the ironies of history is the fact that the Constitutional Convention's preference for the convention method of ratification (rather than ratification by all state legislatures as required by the Articles) resulted in attaching to the Constitution, in 1791, a bill of rights, which the Framers of Philadelphia had considered unnecessary.

The most important aspect of the Constitution was its implementation of the goal "to form a more perfect Union." Carl J. Friedrich characterized the claim that federalism is an American invention a defensible overstatement. The Constitution's effort to delineate clearly the powers of the federal government as against those of the states is remarkable indeed. Its main accomplishment was not to get bogged down by the metaphysics of sovereignty and to enable the federal government to legislate and tax in a manner binding the people directly, without using the states as intermediaries. This structure of "dual sovereignty" assured the viability of the federal government and, at least well into the twentieth century, the viability of the states. It underwent one substantial modification. When the "perpetual" nature of the Union was challenged over the issue of slavery, constitutional amendments were enacted at the end of the Civil War for the primary purpose of securing equal rights to recently emancipated black citizens. These amendments eventually legitimized a great expansion of federal influence on the law of the states in the interest of greater equality for blacks and other minorities.

The constitutional organization of the federal government is delineated by the organization of the constitutional text. The preamble speaks of the people of the United States as ordaining and establishing the Constitution. The first (and presumably most important) article deals with the election and legislative powers of congress. Article II vests the executive power in a President. Article III concerns the judicial power and its jurisdiction. Although this organization seems to provide us with a rather pure example of the separation of powers, the Constitution combines elements of separate and independent powers (such as an independent judiciary or a President not dependent on Congress for his term of office) with a thorough mixing of powers, best summarized by the concept of checks and balances.

Superficially, the legislative and executive branches seem to be assigned separate functions: lawmaking and law executing. The judicial branch, through dispute-settling, performs one part of the executive function under special conditions and special procedures. In reality, however, both the executive and the judiciary engage in law-making through interpretation and rule-making. The executive intrudes into the legislative function by exercising the veto power. Congress, on the other hand, performs executive functions through legislative oversight, appropriations decisions, and confirming appointments. One might better forgo the Framers' own characterization of the system as one of separation of powers. American constitutionalism indulged itself in heaping checks upon checks so that the love of power of officials occupying the various branches of government could be harnessed.

On one of the most important of these checks and the most distinctly American contribution to constitutionalist doctrine, the Constitution of 1787 was silent. Nowhere does the constitutional text grant the power of judicial review of legislation. On the basis of the debates in the Constitutional Convention one can make a strong case that some of the most influential Framers thought that judicial review was implied, but this is not the same as saying that the Constitution implies it. How then did the American judiciary end up as the guardian of the Constitution?

There had been instances of courts exercising the power of judicial review as well as public debate of the issue in the new states. The case for judicial review was based on a peculiarly American amalgam of various strands of constitutionalism. First, there was the notion of a constitution as fundamental law. If Lord Coke could claim the common law as a basis for reviewing acts of Parliament, how much more plausible the claim that judges were bound to obey a fundamental charter viewed as supreme law. Second, if the constitutions derived their authority from the sovereignty of the people, and if legislators and other government officials were simply the people's trustees and servants, it was no great leap to reason that judges had to obey the will of the whole people as expressed in the constitution. Third, the special procedures for constitutional amendment typically denied the legislatures the power to amend by ordinary legislation, which suggested that attempts of that kind should go unenforced. Fourth, those constitutions containing bills of rights reenforced the notion of a constitution as superior law with the aim of protecting the rights of individuals against tyrannical majorities. Fifth, in the case of the federal constitution there was the added need to assure its status as supreme law throughout the Union. The arguments for and practice of judicial review of state legislation served to consolidate the understanding of the American Constitution as the supreme law of the land to which all government actors were subject.

Chief Justice john marshall in marbury v. madison (1803) to the contrary notwithstanding, the issue of judicial review was an intricate one. No simple constitutionalist syllogism could be constructed that invariably led one to conclude that judges had the power of judicial review. The amalgam, however, proved powerful under the conditions prevailing in the United States. When the Supreme Court went ahead and in effect appointed itself and the other judges guardians of the Constitution (in the case of the Supreme Court, eventually to become the preeminent guardian), the people, by and large, acquiesced.

The American institution of judicial review has influenced developments abroad. Various forms of constitutional review exist in Austria, Germany, India, Italy, Japan, and, now, even France—to name the most important. While their historical roots are many and their institutional characteristics diverse, the American model was highly visible when they came into being. One of the most instructive contemporary instances is that of the Court of Justice of the European Community. Starting with the need of assuring the uniformity of Community law throughout the member nations, the Court of Justice has transformed the treaties underlying the European Community (especially the Treaty of Rome) into the constitution of the community. These are radical developments. The constitutionalization of the Treaty of Rome has led to the introduction of judicial review, or what one might more appropriately call Community review, even into countries that have not previously recognized the power of their courts to pass on the constitutionality of legislation.

As constitutionalism does not refer to having a constitution but to structural and substantive limitations on government, it would be a gargantuan task to determine its incidence in a world full of written constitutions, of which many do not mean what they say, while others do not accomplish what they mean. The need to distinguish between form and substance would necessitate impossibly vast empirical assessments. The distinction between form and substance would also make desirable a detailed examination of the legal situation in countries, such as Great Britain, that meet most substantive requirements of constitutionalism without a written constitution, an entrenched bill of rights, or the power of judicial review.

Constitutionalism matured in the context of the liberal democracies with their emphasis on civil and political rights and their attempts clearly to define the public and the private sphere. The rights guaranteed, with the exception of certain rights to participate in the exercise of governmental power, were rights of the citizen against infringement by government of his own sphere, or "defensive" rights (German constitutional law has coined the term Abwehrrechte for this category). The eighteenth-and nineteenth-century constitutions do not contain social rights aimed at guaranteeing citizens a fair measure of well-being. A notable aspect of the Weimar constitution was its effort to formulate rights that would guarantee everyone a worthwhile existence. As the concept of citizenship expanded from the formal equality of sharing legal capacities to the substantive equality of sharing goods, the contemporary welfare state became clearly committed to some undefined (and probably undefinable) minimum of such substantive equality. The predominant means for accomplishing such goals has been legislation rather than constitutionalization. Certain legislation of this kind has been viewed by some as in actual conflict with the constitutionalist scheme. This alleged conflict has, in turn, led to substantial efforts in the United States and other countries to reinterpret the liberal constitutions as not only permitting but demanding government intervention on behalf of the underprivileged.

In conjunction with these difficulties, but by no means restricted to them, American constitutional scholarship engages in periodic debates about methods of constitutional interpretation. Much of the discussion reinvents the interpretive wheels of earlier generations. Its main focus is the degree of fidelity which may be owed the words of the Constitution and the intentions of its Framers. Some contemporary writing argues that the Constitution can incorporate contemporary value preferences of a highly subjective kind. The tension is between the need to expound an essentially unaltered eighteenth-century Constitution in a manner consistent with "the progress of the human mind," on the one hand, and the danger of dissolving the Constitution in the process. The dispute is further complicated by endless varieties of highly refined theories concerning the proper scope of judicial review.

Over its two hundred years the American Constitution has been assigned the role of a national ideology. It has performed this role for a people that has grown from a few million to almost 250 million citizens of very diverse background. While the historical disinclination to amend the Constitution by means other than judicial review may help account for its durability, it has also subjected the Constitution to considerable strain. As the secular equivalent of the Bible, as Walton Hamilton observed, "it became the great storehouse of verbal conflict, and rival truths were derived by the same inexorable logic from the same infallible source." More often than not, Americans invoke constitutional principles in order to understand and resolve conflicts. This fact attests to the extraordinary vitality of American constitutionalism. It may also endanger its viability. Too frequent crossings of the line between "constitution as ideology" and "ideology as constitution" will blur the line. The American concept of the legitimacy of government is closely tied to the Constitution. Its limitless manipulation may endanger the very legitimacy that has been the great accomplishment of American constitutionalism.

Gerhard Casper
(1986)

Bibliography

Adams, Willi Paul 1980 The First American Constitutions. Chapel Hill: University of North Carolina Press.

Bailyn, Bernard 1967 The Ideological Origins of the American Revolution. Cambridge, Mass.: Belknap Press.

Cooke, Jacob E., ed. 1961 The Federalist. Middletown, Conn.: Wesleyan University Press.

Dicey, A.V. (1885) 1959 Introduction to the Study of the Law of the Constitution. London: Macmillan.

Franklin, Julian H., ed. 1969 Constitutionalism and Resistance in the Sixteenth Century. Indianapolis: Bobbs-Merrill.

Friedrich, Carl J. 1941 Constitutional Government and Democracy. Boston: Little, Brown.

——1967 The Impact of American Constitutionalism Abroad. Boston: Boston University Press.

Hamilton, Walton H. 1931 Constitutionalism. Pages 255–258 in Edwin R. A. Seligman et al. (eds.), Encyclopedia of the Social Sciences. New York: Macmillan.

Maitland, F.W. 1926 The Constitutional History of England. Cambridge: At the University Press.

Mc Ilwain, Charles Howard (1940) 1947 Constitutionalism: Ancient and Modern. Ithaca, N.Y.: Cornell University Press.

Pennock, J. Ronald and Chapman, John W., eds. 1979 Constitutionalism. New York: New York University Press.

Perry, Richard L., ed. 1972 Sources of Our Liberties. New York: New York University Press.

Stourzh, Gerald 1977 The American Revolution, Modern Constitutionalism, and the Protection of Human Rights. Pages 162–176 in Kenneth Thompson et al. (eds.), Truth and Tragedy: A Tribute to Hans J. Morgenthau. Washington, D.C.: New Republic Book Co.

Wood, Gordon S. 1969 The Creation of the American Republic 1776–1787. New York: Norton.

Wormuth, Francis D. 1949 The Origins of Modern Constitutionalism. New York: Harper.

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Constitutionalism

CONSTITUTIONALISM

The entry consists of three separate articles Overview, American Colonies, and State Constitution Making.

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