The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
The slightest consideration of the nature, the character, the
organization, and the powers of (federal) courts will dispel any
fear of serious injury to the government at their hands. While by
the Constitution the judicial department is recognized as one of
the three great branches among which all the powers and functions
of the government are distributed, it is inherently the weakest of
them all. Dependent as its courts are for the enforcement of their
judgments upon officers appointed by the executive and removable
at pleasure, with no patronage and no control of the purse or the
sword, their power and influence rest solely upon the public sense
of the necessity for the existence of a tribunal to which all may
appeal for the assertion and protection of rights guaranteed by the
Constitution and by the laws of the land, and on the confidence
reposed in the soundness of their decisions and the purity of their
motives.[278]
114. To the question, “What is constitutional law in the United
States?” the answer is, “Law as interpreted by the Supreme Court.”
In other countries, and, generally speaking, in all countries at all
times, until the institution of the political system of the United
States,—the American system of government,—the supreme law of the
land was the will of the executive (as in absolute monarchies), or
the supreme will of the legislative (as in Great Britain). So long
as the Supreme Court of the United States retains the confidence of
the American people, the decisions of that Court will remain the
authoritative exposition of American constitutional law.
It follows that the normal execution of the judicial office in America
determines the meaning of American constitutional law; or stated in
other words, in the decisions of the Supreme Court there are found
the formulation of the principles on which law in America is founded,
and the application of these principles in testing, as issues arise,
the acts of the legislative and the services of the administrative.
Therefore it is to the interpretation thus given by the judiciary that
we turn for an understanding of the exercise of offices,—legislative,
executive, or judicial, delegated as powers by the sovereign, the
people of the United States. Whatsoever is done, by either (so-called)
department of government in conformity with this delegation of powers
is constitutional; and whatsoever is done by either department in
conflict with this delegation of powers is unconstitutional. Whether
constitutional or unconstitutional it is the exalted and unique
office of the Supreme Court to determine. This Court therefore
touches American life at every point. Exhaustive examination of its
interpretation principles, laws, judicial decisions, arguments of
counsel, opinions of experts, writings of jurists, and the history of
society,—and such examination alone, answers the question, “What is
constitutional law in America?”
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