but nevertheless, if formal treaties and acts of Parliament are written law, then is the British Constitution, in part at least, a written constitution. Some constitutions of the ordinary type, however, are of the strictly ‘written’ sort, being the result of a single legislative act or a grant of power from the sovereign head of the State. Most of the constitutions which have been promulgated in the several States of Continental Europe, as well as that of Japan, are of this character. They have the common characteristic of the lack of any superior sanction. A law enacted by the ordinary legislative authority and promulgated by the supreme executive power of the State is a law, whether sanctioned by the Constitution or not. In other words, a law may be unconstitutional and yet valid.
Extraordinary Constitutions.—As the polity of the British Empire furnishes the best example of the ordinary, ‘flexible,’ and unwritten constitution, so does the fundamental law of the United States exhibit the best and most characteristic constitution of the opposite type—of the extraordinary, or supreme, and ‘rigid’ form. Though the constitutions of the General Government and of the several States have very great and even fundamental differences, they are all alike in this respect, that the organic law has a sanction superior to that of the ordinary law of the land; that the Constitution is in fact ‘the supreme law’ to which the ordinary law must conform; that the sovereignty is not wholly committed to the ordinary agencies of government, but the power of these is limited, and that this limitation on legislative and executive action is not a mere form of words, but is rendered effective by the power vested in the courts of annulling acts of the State in contravention of the supreme law. The Federal Government and the governments of the States are, therefore, not sovereign, but legally limited corporations, strictly analogous to private and minor municipal corporations, which derive a limited authority from the State which created them. There is nothing singular in the power exercised by the courts in declaring a corporate act invalid because of its transcending the legal authority of the body performing it, even in the political sphere. It is plain that the political action of a colony, even of the ‘self-governing’ type, and of dependent States, as well as of cities and towns, is subject to control by the dominant political authority. The British Parliament and the English courts exercised this authority over the American colonies as they now exercise it over Canada and Australia. The novelty of the American system consists in the application of this familiar principle to independent and sovereign States. The right of the Supreme Court of the United States, and even of the ordinary Federal tribunals, to pass upon the validity of acts of the National Congress was long disputed, but it was asserted by the Supreme Court as early as 1797, and actually exercised in the celebrated case of Marbury vs. Madison in 1803. This conclusion was so plainly sound, and so obviously necessary to the working of the American constitutional scheme, that it has been generally acquiesced in. Several of the State courts had in the meantime reached a similar decision as to their authority to nullify acts of their own legislatures when in conflict with the local Constitution or with that of the United States, and the principle may now be regarded as an essential part of the constitutional system of the United States. See Supreme Court of the United States. There is one important difference between the fundamental law of the United States and that of the several States. The National Government being a federal union of independent commonwealths—some of them existing before its formation and others having come into the Union as independent States—the National Constitution is simply a grant of powers from the latter to the former, while the State constitutions are merely limitations upon the power of the ordinary agencies of government of the States. From this it follows that the Federal Government has no powers excepting such as are conferred by the Constitution to which it owes its existence, while the State governments, on the contrary, have vested in them the full sovereignty of the commonwealth, excepting as this is limited by the local Constitution and that of the United States. The function of the courts of the United States and of the several States in interpreting their respective constitutions is very different therefore. An act of Congress is invalid if it transcends the powers conferred upon the legislative branch of the Government by the fundamental law; whereas, an act of the Legislature can be impeached for unconstitutionality only if it is in contravention of one of the limits placed by the Constitution on legislative power.
In general, constitutions may be amended, altered, or abrogated by the same power which created them, or by a process provided in the fundamental law for that purpose. A constitution which is the free gift of the sovereign authority may be recalled or nullified by the authority that conferred it. A rigid constitution of the American type, which is the creation of the people, and which cannot be directly changed without their concurrence, has in practice been found to be of the most inflexible kind. For a period of more than sixty years after the adoption in 1803 of the Twelfth Amendment (relative to the election of President and Vice-President) the Constitution of the United States did not suffer a single amendment, and the three amendments adopted at the close of the Civil War, and as the result thereof, have been the only changes which it has since sustained. Like the English Constitution, however, it has changed greatly, though imperceptibly, by the insidious processes of custom and of judicial interpretation. The history and language of the instrument, and the nature of the changes which it has undergone, will be set forth in the article on the Constitution of the United States. See also Government; State; Sovereignty; Great Britain; and the titles of other States concerning whose constitutions information is sought.
Consult: Bryce, The American Commonwealth (2d ed., London and New York) and Studies in History and Jurisprudence (London and New York, 1901); Burgess, Political Science and Comparative Constitutional Law (Boston, 1900); Anson, Law and Custom of the Constitution, part i. (7th ed., Oxford. 1893), part ii. (2d ed., 1896); Dicey, Lectures Introductory to the Study of the Law of the English Constitution (4th ed., London, 1893); Bagehot, The English Constitution (new ed., London, 1896); Von Holst, Constitutional and Political History of the United States (Leipzig; Am. ed., Chicago);
