The Essentials of American Constitutional Law — John Shaqi
The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
22. In attempting, then, to understand the legislation of Congress,
which is an exercise of delegated powers, it is also necessary to
know the history of the times in which it was enacted. Thus the first
ten amendments were added in response to a quite unanimous demand of
the American people for what they considered at the time, 1789, an
adequate protection of their fundamental rights. The Eleventh Amendment
of 1798 grew out of the unwillingness of the people that a State
should be made defendant in a federal court at the suit of a citizen
of another State; therefore federal jurisdiction in such cases was
denied. The Twelfth Amendment of 1804 was added to remedy a defect in
the Constitution in the method and procedure of choosing the President
and the Vice-President. The Thirteenth, Fourteenth, and Fifteenth
Amendments, of 1865, 1868, and 1870, were added because of the negro
race. The Sixteenth and Seventeenth Amendments, of 1913, were added
after long agitation over direct taxation and the popular election
of senators of the United States, the one essentially an economic,
the other, a political question. The history of the times records how
these amendments were brought about. So too does that history largely
explain the legislation enacted by Congress by authority of these
amendments.[58]
23. The essential fact as to the powers of Congress is of their
limitation. Turning to the Constitution itself, one will find that
it devotes nearly three times as much matter to legislative as to
executive power; and nearly eight times as much matter to legislative
as to judicial power. Doubtless this spatial distribution of powers (or
limitation of powers) tells the whole story. Government is largely an
affair of legislation. Essentially, government is the public business,
controlled and administered for public or general purposes. Government,
in a republic, may be said to express itself in laws. So important
is this expression of the will of the sovereign, constitutional law
consists almost wholly of the interpretation of legislation. This means
that the principles of government are to be learned chiefly from the
judicial decisions in particular cases; and this again means that the
particular law having in due course come before the tribunal, that
law, when tested by the supreme law of the land is sustained, or is
declared to be without authority,—hence it is unconstitutional. In the
final test, all legislation of Congress must stand the strain of this
question: By what authority is this law made? We come then, sooner or
later, in congressional legislation, to the supreme law of the land and
to sovereignty in America,—“We, the people of the United States.”
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