In contrast with the mobility of an unwritten constitution is the fixity
of a constitution written out, like that of the United States or
Switzerland, in one authoritative code. The constitution of the United
States, drawn up at Philadelphia in 1787, is contained in a code of
articles. It was ratified separately by each state, and thenceforward
became the positive and exclusive statement of the constitution. The
legislative powers of the legislature are not to extend to certain kinds
of bills, e.g. _ex post facto_ bills; the president has a veto which can
only be overcome by a majority of two-thirds in both Houses; the
constitution itself can only be changed in any particular by the consent
of the legislatures or conventions of three-fourths of the several
states; and finally the judges of the Supreme Court are to decide in all
disputed cases whether an act of the legislature is permitted by the
constitution or not.
The constitution of the United States is the supreme law of the land as
to the matters which it embraces. The constitution of each state is the
supreme law of the state, except so far as it may be controlled by the
constitution of the United States. Every statute in conflict with the
constitution to which it is subordinate is void so far as this conflict
extends. If it concerns only a distinct and separable part of the
statute, that part only is void. Every court before which a statutory
right or defence is asserted has the power to inquire whether the
statute in question is or is not in conflict with the paramount
constitution. This power belongs even to a justice of the peace in
trying a cause. He sits to administer the law, and it is for him to
determine what is the law. Inferior courts commonly decline to hold a
statute unconstitutional, even if there may appear to be substantial
grounds for such a decision. The presumption is always in favour of the
validity of the law, and they generally prefer to leave the
responsibility of declaring it void to the higher courts.
The judges of the state courts are bound by their oath of office to
support the constitution of the United States. They have an equal right
with those of the United States to determine whether or how far it
affects any matter brought in question in any action. So, vice versa,
the judges of the United States courts, if the point comes up on a trial
before them, have the right to determine whether or how far the
constitution of a state invalidates a statute of the state. They,
however, are ordinarily bound to follow the views of the state courts on
such a question. They are not bound by any decision of a state court as
to the effect of the constitution of the United States on a state
statute or any other matter. This judicial power of declaring a statute
void because unconstitutional has been not infrequently exercised, from
the time when the first state constitutions were adopted.
Public-domain text, read in full here on John Shaqi.
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