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Understanding Constitutional Law

Updated on September 8, 2009

The idea that there is a higher law, superior in authority and obligation to the mandates of princes and the enactments of legislators, exists in one form or another in virtually every political society. Sophocles' tragedy Antigone symbolizes this higher or "natural" law tradition in the literature of the Western world. The idea of a natural law, or "law of nature", runs through the political writings of Plato, Aristotle, and Cicero. The most influential and enduring statement of the higher-law concept is the natural-law philosophy of St. Thomas Aquinas, formulated in the 13th century. Aquinas forth-rightly takes the position that mere "human laws", the commands of political power holders, are invalid and not binding on the conscience of the subject if they violate higher precepts of the natural law.

Anglo-American legal and political thought was only indirectly influenced by continental natural-law theories. But early in England the idea developed that there are certain fundamental principles of government, largely customary in origin but expressed in part by declarations like the Magna Carta (1215), that are binding on sovereign and subject alike. For example, taxes are to be levied and public moneys expended not at the will of the king and his ministers, but only by consent of Parliament. It is usual to speak of the aggregate of these fundamental principles as the "English constitution", and the English revolutions of 1642-1646 against Charles I and of 1688-1689 against James II were essentially assertions of the superiority of the "constitution" over the royal prerogative asserted by the Stuart kings. Indeed, the American Revolution of 1776 was a "constitutional" revolution in the sense that the rebellious colonists justified their resistance to the crown by asserting that their fundamental liberties, as Englishmen, had been grossly violated by the government of George III.

American constitutionalism thus has its historical origin in the English constitutional tradition. But American constitutional law differs from English constitutional law in two essential ways. First, the U. S. Constitution is reduced to writing in a single document rather than, as in England, a historical aggregate of declarations like the Magna Carta and the Bill of Rights (1689) and traditional political usages or "conventions". The second, and even more important, departure from English constitutional practice is the institution of judicial review of legislation in the United States.

The idea that a court, even the highest court of the land, could invalidate an act of Parliament would not have occurred to Englishmen of the 18th or 19th century. Although Sir Edward Coke (1552-1634) had advanced the concept in certain of his bolder moments, the idea of judicial supremacy over the legislature on questions of constitutional law never really took hold in England. Parliament is under obligation to respect and observe the limitations imposed by the English constitution, but, in English constitutional theory, Parliament's interpretation of the constitution, not the courts', is finally authoritative and controlling. By contrast, American political institutions and American history have been influenced profoundly by the Supreme Court's assertion and exercise of the power of judicial review..

The power of the courts to strike down "unconstitutional" enactments of Congress and the state legislatures is not spelled out explicitly in the U. S. Constitution, and legal and political historians have long argued about whether the framers of the Constitution really intended to confer this vast power on the courts. But the question was settled, it would seem once for all, by the decision of the Supreme Court in Marbury v. Madison (1803). Chief Justice John Marshall's opinion for the court in this case, in which he justifies and explains principles of judicial supremacy on constitutional questions, is one of the great U. S. state papers and a landmark in American political history.

Over the years since the decision in Marbury v. Madison, many bitter criticisms have been voiced in Congress and elsewhere of particular Supreme Court decisions in constitutional cases-such as the court's successive rulings in the 1930's invalidating the early legislation of the New Deal and the court's decisions of the 1960's greatly enlarging the rights of accused persons in federal and state criminal proceedings. But there has been no serious proposal in the 20th century to deprive the courts of the power of judicial review. Judicial review of legislation has become a fact of life for the American political order, and the American example has influenced constitutional practice in other parts of the world. Since World War II, for example, a power in the courts to adjudicate the constitutionality (that is, the legal validity or invalidity of legislation) has been written into the new constitutions of India, West Germany, Japan, and several other countries.

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