The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
mark of the power that ordained and established the Constitution.
Sovereignty cannot be delegated, but a supreme law, such as the
Constitution, necessarily implies a sovereignty that has delegated
the powers expressed or implied in the Constitution itself. In other
words, the Constitution of the United States is the supreme law of
the land because the people of the United States are a sovereign.
Sovereignty alone has original powers; all others are delegated. Thus
the Constitution itself declares 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.”[29]
12. American constitutional law is, therefore, the authoritative
formulation, in constitutional, or statutory, or treaty form, of
the will of the sovereign, the people of the United States. This
formulation accords with the powers delegated by that sovereign. The
expression of this delegation of powers in the conduct of the public
business is government. Therefore in America, government is another
word for the delegation of powers,—for limitations of authority.
Sovereignty is unlimited; government is limited. The Constitution of
the United States is the supreme law of the land because through it the
people of the United States,—not the people of any particular State or
group of States,—have delegated larger powers than have the people of
any particular State through its constitution. The whole is greater
than the part. “That the people have an original right to establish for
their future government such principles as, in their opinion, shall
most conduce to their own happiness, is the basis on which the whole
American fabric has been erected.”[30] The exercise of this original
right is an exercise of sovereignty. The result of this exercise,
in America, is the Constitution of the United States which, this
sovereignty declares to be “the supreme law of the land.”[31]
CHAPTER II
THE LAW OF LEGISLATIVE POWERS (1)
13. The organization of the government of the United States reflects
the original and supreme will of the people as they have seen fit to
assign to different departments of that government their respective
powers. “The powers of the Legislature are defined and limited;
and that these limits may not be mistaken, the Constitution is
written.”[32] Thus the Constitution declares that “all legislative
powers _herein granted_” are vested in Congress.[33] The inevitable
conclusion is “no grant, no power.” Congress possesses only delegated
powers. If an issue arises under an act of Congress, there must ever
be the fundamental question of authority for the act. This question
of authority once settled, the act, by the terms of the Constitution
itself, is a part of the supreme law.[34] Rarely is an act of Congress
declared unconstitutional. Legislative experience avoids the enactment
of laws whose constitutionality is doubtful.
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