A final distinction between constitutional law and statute law is the element of para mountcy which belongs to the former. In all countries where constitutional law is a separate and distinct body of jurisprudence its prescrip tions take precedence over all statutory enact ments in case of a conflict between the two. In such cases the conflicting statute is said to be °unconstitutional° and is treated as invalid. The of determining the fact of irrecon cilability has been assumed by the judicial branch of the government in the United States and has been so long acquiesced in that the power will probably never be questioned, al though it is not expressly conferred by the Constitution. In none of the continental European countries have the judiciaries as sumed such power, and in England the °consti tutionality° of an act of Parliament can scarcely arise, since that body is legally omnip otent. The rules for the construction of the prescriptions of constitutional law are essen tially the same as those for the construction of statutes except that constitutions are more strictly interpreted and constitutional com mands are more often construed as mandatory where similar provisions in statutes would be treated as directory only.
In the United States, and in fact in all coun tries having the federal form of government, there are two bodies of constitutional law, namely, that which is national in scope and that which is local, the former being paramount to the latter in case of conflict. In the United States that part which is federal or na tional consists of the Constitution °estab lished and ordained by the peoples in 1788, including the subsequent amendments thereto, together with the interpretations of the Federal judiciary and the usages and customs which have grown up in connection with the ad ministration of the government. Among the important principles which have been developed as a result of judicial interpretation may be mentioned the right of the government to ac quire and administer foreign territory, the immunity of the rational government, its in strumentalities and agencies from taxation by the States, the right of the government to issue legal tender paper currency both in time of war and in time of peace, the exclusive power of Congress over foreign and interstate com merce, the exclusive power of the States over all matters relating to the suffrage subject to the limitations of the 14th and 15th amend ments, the right of the national government to undertake internal improvements, the right of the courts to declare laws unconstitutional, the right of Congress to abrogate a treaty, etc. Among the usages which have become for all practical purposes a part of Federal constitu tional law may be mentioned: the ineligibility of the President for a third term, the obliga tion of presidential electors to vote for the party nominees, the power of the President to remove his appointees without the consent of the Senate, the method of legislation by the committee system, the requirement that repre sentatives in Congress shall reside in the dis tricts from which they arc chosen, etc.
Likewise the constitutional law of the in dividual States is embodied in written constitu tions, in most cases prepared by constituent as semblies and approved by the electorate upon referendum, together with the amendments thereto and the interpretations of the State judiciaries. Several of the early State consti tutions were prepared and put into effect by the legislatures or by irregular revolutionary as semblies without popular ratification.
With one exception (Delaware), no altera tion can he made in any of the existing consti tutions without the approval of the people at the polls, and but three of the constitutions now in force were put into effect without rati fication by the electorate. The earlier consti tutions were brief instruments containing hut little more than the law for the organization of the government and the necessary safe guards for the protection of individual liberty, but the later ones are bulky documents con taining a vast amount of private law relating to matters which are properly subjects of statutory regulation. This increasing tendency
to amplification has resulted from the popular distrust of the State legislatures and the conse quent desire to place the regulation of many matters beyond the power of the legislature to alter or repeal it. The effect has been to destroy in a large degree the scientific distinc tion between constitutional law and statutory law, to retard the constitutional development of the commonwealth, and to add confusion to the task of the student and the practical con stitutional lawyer.
In Great Britain the existing body of con stitutional law differs in several respects from that of the United States. In the first place it is not so much the result of revolution nor is it so nearly the finished product of a constit uent assembly. It is more the product of evolution and growth and is more largely un written than that of the United States. More over, what is written is scattered through dif ferent acts instead of being contained in a single compact instrument. Finally, the Parlia ment being the chief source of constitutional as well as of statutory law there are no juristic tests upon which a distinction may he founded —a fact which has led Mr. A. V. Dicey, one of the most learned English commentators, to declare that the constitutional law of England is a "sort of maze in which the wanderer is perplexed by unreality? He questions whether English constitutional law is really law, and expresses the opinion that it is only a cross between history and custom, undeserving of the name of law. As the term is used in Eng land, he says, it includes all rules which define the members of the sovereign power and regu late their relations to each other, which de termine the mode in which the sovereign power is exercised, which prescribe the order of suc cession to the throne, which regulate the prerogatives of the chief magistrate, determine the form of the legislature, define the territory of the state, etc. Such of these rules as are enforced by the courts he calls collectively the (law of the constitution." The others which consist of understandings, habits or practices, and which are not enforced by the courts, he calls the °conventions of the constitution," or constitutional morality. To the former class belong the rule as to the irresponsibility of the king and the responsibility of his ministers; to the latter belong the rules relating to the executive veto, the initiation of revenue bills and the resignation of ministers. Monsieur Boutmy, a learned French commentator on the British Constitution, points out that the prin cipal sources of the constitutional law of Eng land are: (1) Treaties or quasi-treaties, such as the Acts of Union; (2) the common law; (3) solemn agreements, for example, the Bill of Rights; (4) statutes. Of the other European countries the constitutional law (Siaatsrecht) of Germany is most nearly like that of the United States as to its source, content and dual character. The constitutional law of the French Republic may be dismissed within a sentence. It is embodied in a brief instrument of a few hundred words, contains a bare outline of the organization of the government, does not con tain a solitary provision in behalf of individual liberty, and any part or the whole may be altered by the legislature at will.
Bibliography.—Anson, and Custom of the Constitution' ; Burgess, 'Political Science and Constitutional Law); Boutmy, 'Studies in Constitutional Law' ; Cooley, 'Prin ciples of Constitutional Law' ; Dicey. 'The Law of the Constitution' ; Story, 'Com mentaries on the Constitution' ; Lebon, Staatsrecht der franzosischen Republic' ; 'Das Staatsrecht des deutschen Reiches> ; Willoughby, 'On the Constitution.'