The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
1. The supreme law of the land is the Constitution, and acts of
Congress and treaties made under its authority. By this supreme law
the judges in every State are bound, “anything in the constitution or
laws of any State to the contrary notwithstanding.” All legislative,
executive, and judicial officers both of the United States and of
the several States are bound by oath or affirmation to support the
Constitution, and in our actual government, every administrative
official, State or national, is bound in like manner.[1] Aliens
becoming American citizens by naturalization,—by which they disavow
allegiance to any other sovereignty,—solemnly bind themselves, by
oath or affirmation, to support the Constitution. Every citizen is
impliedly under oath to support the Constitution.
2. Such supremacy of the Constitution is essential to American
sovereignty. The people of the United States ordained and established
this supreme law. They are sovereign. The oath or affirmation to
support it is the formal and sovereign promise of fidelity to that
sovereign, to any sovereign, or quasi-sovereign,—for example, to
England, France, or a State in the American Union. The supreme law of a
sovereignty,—its “constitution,” may be written, like ours, or partly
unwritten, as the British constitution. The essential fact is of the
supremacy of the law because of the sovereignty of the law-giver.
3. The laws of the United States are made by Congress and the
President, or by Congress alone over his veto.[2] The laws of a State
are made by its legislature and governor, or by the legislature
alone over his veto; but Congress, the President, State legislature
and governors are only agents of their sovereign: they possess
_derivative_, not _original_, powers; they _represent_ sovereignty. The
American sovereign is “We the People” of the United States, and for
many purposes, “We the People” of the respective States. All government
in America is representative government. The sovereign makes laws
through its agents or representatives. No other method is possible in
a sovereignty conceived and operating as ours. Whether the law thus
formulated be a constitution,—national or State,—an act of Congress or
of Assembly, it is an expression, on the principle of agency, of the
will of the sovereign. The Convention that frames a constitution is an
agent of sovereignty; the Congress or State Legislature that enacts a
law is an agent of that sovereignty, and that sovereignty prescribes
through its agents the method of ratifying and administering that law.
Through other agents, e. g., the judiciary, that sovereignty interprets
constitutions and laws.[3] Legislative, executive, judicial, and
administrative officials constitute the governmental group, the public
servants to whom, for a term, the sovereign delegates some of its
powers. The members of this group are agents of the sovereign and are
answerable to that sovereign as is the agent to his principal.
Public-domain text, read in full here on John Shaqi.
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