§ 40 The Constitution of the State
In the definition of a state as a society with a special end and function, there is implied a permanent and definite organisation—a determinate and systematic form, structure, and operation. A body politic is not constituted by a temporary and casual union of individuals, for the purpose of repelling an external enemy, or of executing judgment on some domestic evildoer. The transition from natural to political society is effected only when the union of individuals has assumed a certain measure of permanence and organisation, and when their combined operations in pursuit of their common end have become in a certain degree systematic and definite. It is only when a society has acquired such an organisation, whether by way of agreement, custom, forcible imposition, or otherwise, that it takes on the nature of a body politic or state. It is only then, that there comes into existence the organ which is essential to the performance of those functions which constitute political government.
The organisation of a modern state is of extraordinary complexity, and it is usual to regard it as divisible into two distinct parts. The first consists of its fundamental or essential elements; the second consists of its secondary elements—the details of state structure and state action. The first, essential, and basal portion is known as the constitution of the state. The second has no generic title.
Constitutional law is, as its name implies, the body of those legal rules which determine the constitution of the state. It is not possible to draw any hard and fast line between the constitution and the remaining portions of the state’s organisation; neither, therefore, is it possible to draw any such line between constitutional law and other branches of the legal system. The distinction is one of degree, rather than one of kind, and is drawn for purposes of practical convenience, rather than in obedience to any logical requirement. The more important, fundamental, and far-reaching any principle or practice is, the more likely it is to be classed as constitutional. Conversely, the more special, detailed, and limited in its application, the less likely it is to find a place in any exposition of the law and practice of the constitution. The structure of the supreme legislature and the methods of its action pertain to constitutional law; the structure and operations of subordinate legislatures, such as those possessed by the colonies, are justly entitled to the same position; but those of such subordinate legislatures as a borough council would by general consent be treated as not sufficiently important and fundamental to be deemed part of the constitution. So the organisation and powers of the Supreme Court of Judicature, treated in outline and not in detail, pertain to constitutional law; while it is otherwise with courts of inferior jurisdiction, and with the detailed structure and practice of the Supreme Court itself.
In some states, though not in England, the distinction between constitutional law and the remaining portions of the legal system is accentuated and made definite by the embodiment of the former in a special and distinct enactment, the terms of which cannot be altered by the ordinary forms of legislation. Such constitutions are said to be rigid, as opposed to those which are flexible. That of the United States of America, for example, is set forth in a document agreed upon by the founders of the Commonwealth as containing all those principles of state structure and action sufficiently important to be deemed fundamental and therefore constitutional. The provisions of this document cannot be altered without the consent of three-fourths of the legislatures of the different states. The English constitution on the other hand is flexible; it is defined and set apart in no distinct document, and is not distinguishable from the residue of the law in respect of the methods of its alteration.
We have defined constitutional law as the body of those legal principles which determine the constitution of a state—which determine, that is to say, the essential and fundamental portions of the state’s organisation. We have here to face an apparent difficulty and a possible objection. How, it may be asked, can the constitution of a state be determined by law at all? There can be no law unless there is already a state whose law it is, and there can be no state without a constitution. The state and its constitution are therefore necessarily prior to the law. How then does the law determine the constitution? Is constitutional law in reality law at all? Is not the constitution a pure matter of fact, with which the law has no concern? The answer is, that the constitution is both a matter of fact and a matter of law. The constitution as it exists de facto underlies of necessity the constitution as it exists de jure. Constitutional law involves concurrent constitutional practice. It is merely the reflection, within courts of law, of the external objective reality of the de facto organisation of the state. It is the theory of the constitution, as received by courts of justice. It is the constitution, not as it is in itself, but as it appears when looked at through the eye of the law.
The constitution as a matter of fact is logically prior to the constitution as a matter of law. In other words constitutional practice is logically prior to constitutional law. There may be a state and a constitution without any law, but there can be no law without a state and a constitution. No constitution, therefore, can have its source and basis in the law. It has of necessity an extra-legal origin, for there can be no talk of law, until some form of constitution has already obtained de facto establishment by way of actual usage and operation. When it is once established, but not before, the law can and will take notice of it. Constitutional facts will be reflected with more or less accuracy in courts of justice as constitutional law. The law will develop for itself a theory of the constitution, as it develops a theory of most other things which may come in question in the administration of justice.
As an illustration of the proposition that every constitution has an extra-legal origin, we may take the United States of America. The original constituent states achieved their independence by way of rebellion against the lawful authority of the English Crown. Each of these communities thereupon established a constitution for itself, by way of popular consent expressed directly or through representatives. By virtue of what legal power or authority was this done? Before these constitutions were actually established, there was no law in these colonies save that of England, and it was not by the authority of this law, but in open and forcible defiance of it, that these colonial communities set up new states and new constitutions. Their origin was not merely extra-legal; it was illegal. Yet so soon as these constitutions succeeded in obtaining de facto establishment in the rebellious colonies, they received recognition as legally valid from the courts of those colonies. Constitutional law followed hard upon the heels of constitutional fact. Courts, legislatures, and law had alike their origin in the constitution, therefore the constitution could not derive its origin from them. So also with every constitution that is altered by way of illegal revolution. By what legal authority was the Bill of Rights passed, and by what legal title did William III. assume the Crown? Yet the Bill of Rights is now good law, and the successors of King William have held the Crown by valid titles. Quod fieri non debet, factum valet.
Constitutional law, therefore, is the judicial theory, reflection, or image of the constitution de facto, that is to say, of constitutional practice. Here, as elsewhere, law and fact may be more or less discordant. The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law but not in fact, or true in fact but not in law. Power may exist de jure but not de facto, or de facto but not de jure. In law, for example, the consent of the Crown is no less necessary to legislation, than is that of the two houses of Parliament. Yet in fact the Crown has no longer any power of refusing its consent. Conversely, the whole system of cabinet government, together with the control exercised by the House of Commons over the executive, is as unknown in law as it is well established in fact. Even in respect of the boundaries of the state’s territories the law and the fact may not agree. A rebellious province may have achieved its de facto independence, that is to say, it may have ceased to be in the de facto possession and control of the state, long before this fact receives de jure recognition.
Nowhere is this discordance between the constitution in fact and in law more serious and obvious than in England. A statement of the strict legal theory of the British constitution would differ curiously from a statement of the actual facts. Similar discrepancies exist, however, in most other states. A complete account of a constitution, therefore, involves a statement of constitutional custom as well as of constitutional law. It involves an account of the organised state as it exists in practice and in fact, as well as of the reflected image of this organisation as it appears in legal theory.
Although the constitution de jure and the constitution de facto are not necessarily the same, they nevertheless tend towards coincidence. Constitutional law and practice react upon each other, each striving to assimilate the other to itself. The objective facts of state organisation tend to mould legal theory into conformity with themselves. They seek expression and recognition through legislation, or through the law-creating functions of the courts. Conversely, the accepted legal theory endeavours to realise itself in the facts. The law, although it necessarily involves a pre-existing constitution, may nevertheless react upon and influence the constitution from which it springs. It cannot create a constitution ex nihilo, but it may modify to any extent one which already exists. Constitutional practice may alter, while constitutional law remains the same, and vice versa, but the most familiar and effective way of altering the practice is to alter the law. The will of the body politic, as expressed through the legislature and the courts, will commonly realise itself in constitutional fact no less than in constitutional theory.