The Foundations of American Constitutionalism

By Andrew C. McLaughlin | Go to book overview

V
THE COURTS AND THE RIGHT OF JUDICIAL REVIEW; THE REIGN OF LAW

IN the last lecture, I discussed the method by which constitutions were framed in the Revolutionary days. That method, especially in New England, was in accord with the fundamental doctrine of the social-compact philosophy. We saw that the theoretical and practical principle involved the idea that a government is inferior to the state, and that the document on which the legislative power rested is the warrant of legislative authority. I now wish to make clear this principle of American constitutionalism; and first it may be well to begin with a brief exposition of it, as we know it to-day, and then return to the history and thus see how it found permanent lodgment in American law.

If there is any central principle in the American constitutional system, it is that governments are not omnipotent; they are, or are supposed to be, of only limited authority. This principle of limited authority is sometimes spoken of as the reign of law. Liberty has been often defined as the right or the privilege of not being under restraint or obligation to obey anything but the law. 1 The struggle for freedom in Eng-

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"The liberty of man in society is to be under no other legislative power but that estalished by consent in the commonwealth, nor under the dominion of any will, or restraint of any law, but what that legislative shall enact according to the trust put in it." Locke Two Treatises,. . . An Essay Concerning the True Original, Extent, and End of Civil Government, Sect. 22. This statement of Locke's does not fully express the idea of a government which is itself bound by law; but his whole argument is against arbitrary and unrestrained government.

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