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Index of Cases
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 347-352
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Chapter X - Civil Liberties and the 'Cold War
- from PART II - MODERN DEVELOPMENTS
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 240-282
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Summary
Security and liberty, in their pure form, are antagonistic poles. The one pole represents the interest of politically organized society in its own self-preservation. The other represents the interest of the individual in being afforded the maximum right of self-assertion, free from governmental and other interference. Neither can be given the absolute protection, to the exclusion of the other, which its devotees desire. ‘Absolute rules would inevitably lead to absolute exceptions, and such exceptions would eventually corrode the rules.’
Both security and liberty are essential elements in the functioning of any polity, and their co-existence must somehow be reconciled. The right of a government to maintain its existence—self-preservation—has been characterized as the most pervasive aspect of sovereignty. ‘To preserve its independence, and give security against foreign aggression and encroachment, is the highest duty of every nation,’ declared the United States Supreme Court in 1889, ‘and to attain these ends nearly all other considerations are to be subordinated.’ But, as a member of that tribunal has more recently pointed out, even the all-embracing power and duty of self-preservation is not absolute. The problem is more one of striking a proper balance between the claims of both liberty and security than of seeking wholly to vindicate the one or the other. ‘The demands of [liberty] in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests… than by announcing dogmas too inflexible for the non-Euclidean problems to be solved.’
In their balancing of security and liberty, it cannot be denied that the Founders of the American Republic gave a preferred position to the latter. ‘The American Bills of Rights’, an outstanding student of comparative constitutional law informs us, ‘drew up the inventory—since become classic, of modern liberties.’ The Bill of Rights of the Federal Constitution is contained in the first eight amendments to that instrument, which were adopted almost immediately after the Constitution went into effect, in order to meet widespread popular criticism resulting from the absence of such specific safeguards in the original organic instrument.
Chapter XI - Administrative Law
- from PART II - MODERN DEVELOPMENTS
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 283-307
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Summary
If it were written some fifty years ago, a work like the present one, seeking to explain the essentials of American constitutional law to a British audience, would hardly have included a chapter devoted to administrative law. The British jurist could not be expected to show an interest in developments abroad in a field whose existence he had been accustomed to deny at home. If, however, a half-century ago it required the ‘prophetic sense of a Maitland’ to realize the great growth of administrative law, today awareness of that growth has become a commonplace. Administrative law, as a leading American judge has recently affirmed, is now recognized as ‘the outstanding legal development of the twentieth century, reflecting in the law the hegemony of the executive arm of the government’. Nor, it should be noted, is the realization of this confined to members of the legal profession. Indeed, as significant to the student of administrative law as the tremendous extension of his subject, has been the widespread public interest displayed in it in recent years.
Public concern over trends in this field reflects an increasing awareness of its importance in dealing with the many problems arising out of the expansion of the role of the State. Human existence is inconceivable outside of society. At the same time organized society threatens to overwhelm the individual. ‘There is not a moment of his existence where modern man does not find himself in contact with government and its agents.’ In the contemporary State, government tends more and more to become the all-dominant factor in society, by taking over or controlling the functions hitherto performed by private institutions. As it does so it comes into ever-increasing contact with the individual life. ‘It is in this ceaseless contact of the individual with the State that the danger of arbitrariness has especially arisen.’
PART I - THE STRUCTURE
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 1-2
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American Constitutional Law
- Bernard Schwartz
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- 19 September 2013
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Originally published in 1955, this book by legal historian Bernard Schwartz presents the workings of American constitutional law for a non-American audience. Schwartz explains in the preface that 'essential to an understanding of the United States is some knowledge of the American system of constitutional law. For it is no exaggeration to say that the Federal Constitution is the fulcrum upon which American institutions turn.' This book will be of value to legal historians and anyone with an interest in the American legal system.
Frontmatter
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp i-iv
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Chapter IX - The Negro and the Law
- from PART II - MODERN DEVELOPMENTS
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 222-239
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Summary
An American travelling outside the United States cannot help but be struck by the vast interest displayed in the position of the Negro in his country. The reason for that interest is not hard to find. ‘Our American heritage of freedom and equality has given us prestige among the nations of the world, and a strong feeling of national pride at home. There is much reason for that pride. But pride is no substitute for steady and honest performance, and the record shows that at varying times in American history the gulf between ideals and practice has been wide.’ To the foreigner, the position of the Negro in the United States indicates that the American ideal of freedom and equality for all men is still far from complete realization.
For this gap between ideal and reality, American law must take a portion of the blame. It is true that discrimination against the Negro in the United States has roots deeper than the actions of legislatures and courts. Historical causes reaching far back into North American origins have placed the Negro race in the position of ‘second-class’ citizens. ‘The Civil War gave the Negro legal equality with his former masters, but it could not and did not give him either the experience in the exercise of freedom or the moral status in the sight of his white fellow citizens to make the freedom of the Negro an acceptable and workable relationship for them.’ Discrimination against the Negro is still embedded in the customs of a large part of the United States.
It is, however, inevitable that the law should play a pivotal role in a country whose political and legal institutions are British in origin. This is especially true under the American constitutional system, where the work of the courts is of such significance. Discrimination against the Negro could not have as great an effect without the condonation of the legal order. The consent of the courts has been necessary for the subordinate status of the Negro to become of more than extra-legal consequence.
That the American courts have condoned, if not encouraged, discriminatory practices should not be a source of surprise.
Chapter VIII - The Changing Role of the Supreme Court
- from PART II - MODERN DEVELOPMENTS
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 207-221
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Summary
In 1948, Professor Friedmann called attention to what he termed the ‘fundamental changes of legal ideology reflected in the jurisdiction of the Supreme Court of the United States during the past ten years’. That such changes have occurred must be evident to anyone who has observed the work of that tribunal. What is perhaps not so apparent to the British observer is the extent of such change, which has been characterized by a leading American constitutional lawyer as ‘Constitutional Revolution, Ltd.’
To the outsider, the most striking characteristic of the American constitutional system is the doctrine of judicial supremacy. ‘No feature in the Government of the United States’, writes Lord Bryce, ‘has awakened so much curiosity in the European mind, caused so much discussion, received so much admiration, and been more frequently misunderstood, than the duties assigned to the Supreme Court and the functions which it discharges in guarding the ark of the Constitution.’ Under the doctrine of judicial supremacy, it has been the American Supreme Court that has determined conflicts between acts of government and the Constitution, and it has done so through the technical forms of the lawsuit. ‘These lawsuits’, states a justice of the Supreme Court, ‘are the chief instruments of power in our system. Struggles over power that in Europe call out regiments of troops, in America call out regiments of lawyers.’
It is precisely this aspect of the American system—what has been termed ‘government by lawsuit’—that is most difficult for the foreigner to comprehend. In February 1935, the federal Supreme Court by a bare majority, in effect, upheld the power of the Congress to lower the gold content of the dollar. The holder of a railroad bond bearing an interest coupon payable in gold of face value of $22.50 which had been issued before the gold content of the dollar had been lowered, demanded $38.10 in payment after devaluation, but the court held that he was required to accept the face value of the coupon in the new dollars.
Chapter III - The Congress
- from PART I - THE STRUCTURE
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 49-84
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Summary
‘The power and jurisdiction of Parliament, says Sir Edward Coke, is so transcendent and absolute, that it cannot be confined, either for causes or persons within any bounds.’ This doctrine of parliamentary supremacy is the dominant characteristic of British political institutions. Under it, according to the almost proverbial English aphorism, ‘Parliament can do everything but make a woman a man, and a man a woman’. It is its sovereign position in this respect that sharply differentiates the legislature in Britain from its counterpart in the United States. The existence of a written constitution in that country, whose provisions are enforced by the courts, has prevented the American Congress from asserting for itself anything like the supreme status assumed by its counterpart in Britain. Like the other organs of the Federal Government, the Congress possesses only the powers expressly or impliedly granted to it by the Constitution. And, if it acts beyond the terms of the grant in the fundamental law, its acts will be set aside by the American courts as ultra vires and unconstitutional.
Yet, though the American legislature is not sovereign in the British sense, its position in the federal governmental structure should not be minimized. To the Congress is delegated all of the legislative power conferred by the American Constitution. The very first section of Article I of that instrument provides that ‘All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives’. Because of the doctrine of the separation of powers, which, as we have seen, has been of such significance in the American system, this means that the Congress alone is the source of all federal legislation. Although, under modern constitutional theory, the executive, too, may exercise authority which is legislative in character, its powers in this respect are entirely subordinate ones. They must find their source in delegations from the Congress, or else they cannot validly be exercised.
It is hardly necessary to impress upon the modern jurist the importance of a governmental organ, like the American Congress, which is the source of all legislative authority.
Chapter V - The Courts
- from PART I - THE STRUCTURE
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 125-160
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Summary
The position of the courts in a country is of crucial importance to one seeking to comprehend its constitutional institutions. The proper function of the constitutional lawyer, according to A. V. Dicey, is to show what are the legal rules (i.e. rules recognized and enforced by the courts) which are to be found in the several parts of the constitution. Adequate performance of this function presupposes an understanding of the organization and functioning of the judiciary. This is especially true for one interested in the study of the law of the American Constitution. For it has become almost a commonplace that the courts in the United States—and especially the Supreme Court—are the fulcrum upon which the American constitutional system turns. ‘In no country in the world today has the lawyer a standing remotely comparable with his place in American politics. The respect in which the federal courts and, above all, the Supreme Court are held is hardly surpassed by the influence they exert on the life of the United States. If it is excessive to say that American history could be written in terms of its federal decisions, it is not excessive to say that American history would be incomplete without a careful consideration of them.’
Ever since de Tocqueville, outside observers have emphasized the primordial role of the judge in American society. Nor is this role based exclusively upon the fact that the Constitution of the United States, unlike that in Britain, is a written instrument. Most of the countries of Continental Europe have written constitutions; yet in none of them has the judge attained anything like the status of his American confrère. From a practical point of view, the situation in such Continental countries is basically like that in Britain because of the lack in their system of any effective judicial control of the constitutionality of the laws enacted by the legislature. The restrictions placed upon the legislature under most Continental constitutions are not, in reality, laws since they are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which have more a moral than a legal basis.
PART II - MODERN DEVELOPMENTS
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 161-162
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General Index
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 353-364
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Chapter XII - The United States and the United Nations
- from PART II - MODERN DEVELOPMENTS
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 308-332
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Summary
Most Americans tend to adopt a cavalierly complacent attitude toward the working of their Constitution. The spirit with which they look upon that document recalls with singular fidelity that with which, according to Dicey, Englishmen of a century and a half ago looked upon the institutions of their country. ‘The constitution was to them, in the quaint language of George the Third, “the most perfect of human formations” it was to them not a mere polity to be compared with the government of any other state, but so to speak a sacred mystery of statesmanship…. It was in short a thing by itself, which Englishmen and foreigners alike should “venerate, where they are not able presently to comprehend”.’
The student of comparative law must of necessity look on the American Constitution in a spirit different from the sentiment of the average inhabitant of the United States. He can hardly be expected to share the fervent self-satisfaction of Americans, who attribute the flourishing of their system almost entirely to their political and economic institutions. The comparative jurist, who seeks impartially to examine the constitutional system of the United States, will wish neither to criticize, nor to venerate, but to understand. And one like the present writer, who attempts to enlighten a British audience on the contemporary working of the American Constitution, must feel that he is called upon to perform the part neither of a critic nor of an apologist, nor of a eulogist, but simply of an expounder; his duty is neither to attack nor defend the federal organic instrument, but simply to explain the system set up by it.
To present such an explanation of the workings of the constitutional system of the United States, especially of the significant changes that have occurred therein in recent years, has been the primary purpose of this book. Under contemporary conditions, however, a constitutional law study devoted solely to the domestic side of the subject would be quite incomplete. For, it has become a commonplace that, in the present century, public law has come to have international as well as municipal aspects.
Chapter IV - The President
- from PART I - THE STRUCTURE
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 85-124
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Summary
‘What is the best constitution for the executive department,’ states the most famous of Commentaries upon the American Constitution, ‘and what are the powers, with which it should be entrusted, are problems among the most important, and probably the most difficult to be satisfactorily solved, of all which are involved in the theory of free governments…. No man, who has ever deeply read the human history, and especially the history of republics, but has been struck with the consciousness, how little has been hitherto done to establish a safe depositary of power in any hands; and how often in the hands of one, or a few, or many, of an hereditary monarch, or an elective chief, the executive power has brought ruin upon the state, or sunk under the oppressive burden of its own imbecility.’
There appears to be little doubt but that the framers of the American Constitution were strongly influenced by sentiments such as those which moved the author of this passage. In dealing with the organization of the national executive, the Convention of 1787, which drew up the American organic instrument, was well aware of the dilemma which confronted it. ‘The majority of the Framers ardently desired to provide an executive power which should be capable of penetrating to the remotest parts of the Union, not only for the purpose of enforcing the national laws, but also… for the purpose of bringing assistance to the states in grave emergencies of domestic disorders. At the same time, most of them recognized that it was absolutely indispensable that the Convention should avoid stirring up the widespread popular fear of monarchy. Nor did the vast size of the country and the difficulties of travel and transportation make the problem any easier of solution. How could a political force be provided that would be sufficient to overcome these natural obstacles and yet be safe—or at least thought safe—from the point of view of popular liberty?’
Foreword
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp ix-xii
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Summary
When an American begins his study of the British constitution he may find some difficulty in understanding it. He is told that the Sovereign is divorced from all politics, but when he reads the Queen's Speech at the opening of Parliament it seems to him that she is advocating legislation which is to be enacted in the coming session. Again, he finds that the House of Lords still has great powers of obstruction, but that these are not exercised even when there is a Labour government in power. Finally, although he is told that the Rule of Law, protection against arbitrary arrest, freedom of speech and of the press, are essential elements in the English polity, he is also informed that they receive no constitutional protection and that they can be abolished by Parliament at any time. It is only after further study that he begins to realize that law in the books and law in action may be two entirely different things.
An Englishman who seeks to understand the American system of government is in even greater danger of committing a similar error, for he is inclined to think that all that he needs to do is to read the Constitution of 1789 and its twenty-two amendments, but, unfortunately for him, he will soon find out that this will land him in a morass of misunderstanding and error. It ought to be obvious that a document which contains less than 8000 words can hardly be more than an outline. This is not to decry the Constitution, for if its authors had attempted to create a detailed governmental structure it would not have survived the stresses of the century and a half during which the thirteen States along the Atlantic coast stretched across the continent, and the population increased fiftyfold. To understand this Constitution it is, therefore, necessary to study its history, and, in particular, its development in the decisions of the Supreme Court, because, as the late Mr Justice Jackson has said, the American system is, in large part, ‘government by lawsuit’.
Chapter I - The Bases of the American System
- from PART I - THE STRUCTURE
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 3-26
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English writers on constitutional law, reads a well-known passage by A. V. Dicey, have ‘good reason to envy professors who belong to countries, such as… the United States, endowed with constitutions of which the terms are to be found in printed documents, known to all citizens and accessible to every man who is able to read. Whatever may be the advantages of a so-called “unwritten” constitution, its existence imposes special difficulties on teachers bound to expound its provisions. Anyone will see that this is so who compares for a moment the position of writers, such as Kent or Story, who commented on the constitution of America, with the situation of any person who undertakes to give instruction in the constitutional law of England.’ American jurists, asserts Dicey, who have written upon constitutional law, have known precisely what was the subject of their work. ‘Their task as commentators of the constitution was in kind exactly similar to the task of commenting on any other branch of American jurisprudence. The American lawyer has to ascertain the meaning of the articles of the constitution in the same way in which he tries to elicit the meaning of any other enactment…. The task, in short, which lay before the great American commentators was the explanation of a definite legal document in accordance with the received canons of legal interpretation.’
It is, however, a mistake to assume that constitutional law in a country governed by a written organic instrument, such as the American Constitution, involves solely an application of the legal canons of construction. It may be, as the United States Supreme Court stated almost a generation ago, that ‘When an act of Congress is appropriately challenged in the courts as not conforming to the constitutional mandate the judicial branch of the Government has only one duty,—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.’
But this picture of American constitutional law as only a mechanical process akin to the judicial construction of a contract or a will, though true in some cases, is at variance with reality in the majority of instances. The American Constitution does not purport to prescribe its provisions in minute detail.
Chapter VI - The New Federalism
- from PART II - MODERN DEVELOPMENTS
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 163-186
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‘What is the fundamental characteristic of the United States considered as an association of states?’ asks the leading English study of federal government. The answer, according to the author, is the principle under which the general and the regional governments are co-ordinate and independent in their respective spheres. ‘The answer seems to be that the Constitution of the United States establishes an association of states so organized that powers are divided between a general government which in certain matters…is independent of the governments of the associated states, and, on the other hand, state governments which in certain matters are, in their turn, independent of the general government.’
There is little doubt but that this answer accords with the structure of the American Union that was contemplated by the framers of the Federal Constitution. Their dominant concern was to ensure that the national Government which they were creating would not be so powerful that it would, in practice, swallow up the States out of which the nation was to be composed. They sought to accomplish this by limiting the Federal Government to a specific list of enumerated powers which were essential to its effective functioning, while reserving all other authority to the States, which were to continue unaltered as separate sovereignties, except for whatever powers they had surrendered to the nation. The concept of federalism which pervaded the governmental philosophy of the founders of the American Union was based upon the co-ordinate and independent position of the different centres of government. What was necessary, in their view, was that each government should be limited to its own sphere and, within that sphere, should be independent of the other.
‘In the classical Anglo-American doctrine of federalism,’ a French student of American public law has declared, ‘the division of powers between the federal State and the member-States guarantees, to the one and to the others, full sovereignty in the domain appropriate to each. The exercise of federal powers should not infringe upon the area of powers reserved to the member-States. And vice versa.’ This classical concept of federalism, however, upon which the American system was based, has not been able successfully to withstand the stresses of twentieth-century political evolution.
Contents
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp vii-viii
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Chapter II - The Federal System
- from PART I - THE STRUCTURE
- Bernard Schwartz
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- American Constitutional Law
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- 19 September 2013, pp 27-48
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To the English observer, the American constitutional system is sharply difFerentiated from the one with which he is familiar, not only because of the separation of powers between the three departments of government, but, even more so, because of the division of authority between the national and State Governments. The doctrine of parliamentary supremacy is wholly inconsistent with a federal form of government, such as that which exists in the United States. In a federal system, the authority of the central legislature is limited by that possessed by the legislative organs of the governmental units which make up the federation. Such circumscription of power is essential to the functioning of federalism. It is entirely incompatible with the unrestricted sovereignty of Parliament, upon which the working of the constitutional system in Britain turns. ‘The principle, in short,’ states an outstanding English text, ‘which gives its form to our system of government is (to use a foreign but convenient expression) “unitarianism”, or the habitual exercise of supreme legislative authority by one central power, which in the particular case is the British Parliament. The principle which, on the other hand, shapes every part of the American polity, is that distribution of that limited…authority among bodies each co-ordinate with and independent of the other which…is essential to the federal form of government.’
The recognition of this basic difference between the American and English constitutional systems does not, however, of itself enable the outside observer to obtain an accurate picture of the functioning of federalism in the United States. For, as Viscount Haldane, L.C., pointed out in an important case, not all federal governmental systems are alike. ‘In a loose sense the word “federal” may be used…to describe any arrangement under which self-contained States agree to delegate their powers to a common Government with a view to entirely new Constitutions even of the States themselves. But the natural and literal interpretation of the word confines its application to cases in which these States, while agreeing on a measure of delegation, yet in the main continue to preserve their original Constitutions.’
Appendix: Constitution of the United States of America
- Bernard Schwartz
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- 19 September 2013, pp 333-346
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We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
ARTICLE I
SECTION 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
SECTION 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
No Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.
Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term often Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.
When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.
The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.