The Essentials of American Constitutional LawThorpe, Francis Newton
History
The Essentials of American Constitutional Law
Thorpe, Francis Newton
Constitutional law -- United States
147. The American constitutions are expressed and implied, limitations
of governmental powers, though popularly considered as grants of such
powers. “The truth is,” wrote Hamilton in _The Federalist_, “the
Constitution is itself, in every rational sense, and to every useful
purpose, a Bill of Rights.” It is “the Bill of Rights of the Union.”
It declares and specifies “the political privileges of the citizens
in the structure and administration of the government.” It “defines
certain immunities and modes of proceeding which are relative to
personal and private concerns.” It comprehends “various precautions
for the public security which are not to be found in any of the State
constitutions.”[415] James Wilson agreed with Hamilton that the
Constitution is itself a Bill of Rights, remarking, in reply to the
objection that the Constitution as it left the hands of its framers
and went to the country had no Bill of Rights:
A Bill of Rights would have been improperly annexed to the federal
plan (_i. e._, the Constitution, 1787), and for this plain reason
that it would imply that whatever is not expressed was given, which
is not the principle of the proposed Constitution.[416]
As constitutions are the most solemn form of limitations of
governmental powers, their interpretation determines the whole
character of the government. The principle of constitutional
interpretation is that
words are to be understood in that sense in which they are
generally used by those for whom the instrument was intended; its
provisions are neither to be restricted into insignificance, nor
extended to objects not comprehended in them, nor contemplated by
its founders.[417]
The effect of the judicial pronouncement of the unconstitutionality of
a law is to make it “in legal contemplation, as inoperative as if it
had never been passed.”[418]
148. To whatsoever extent State or federal officials perform
ministerial functions they are answerable to the judiciary for their
acts. Ministerial officers comprise the vast body of appointees in the
States and in the United States. They are not executive officers, for
such perform functions distinctively outside judicial investigation,
but as distinctively within the political powers of the legislature.
The judiciary is a powerful limitation of ministerial powers, in the
sense that the performance of those powers is examinable in courts of
law.[419]
In the popular mind the veto power may seem to be the principal
executive check on legislation. This conviction takes form in State
constitutions[420] which authorize the Governor to veto any item in an
appropriation bill, or to cut the item down.
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