tion may be defined as a body of precepts, "written or unwritten, designed to control governmental action until modified in some authorized manner." Constitutional law is the body of rules and principles which the courts adopt in the application and construction of these precepts. One of the chief differences between an unwritten and a written constitution is the difference in the method of amendment or alteration. For instance, in England where the constitution is unwritten, it is changed in the same manner that an ordinary statute is passed, by an act of Parliament. In the United States, however, the method of amending the constitution is much more formal and requires a far more elaborate process than the enactment of a statute, the theory being that only those things are put in the written constitution which are so fundamental as to require their being placed beyond the reach of hasty or ill-considered action.

Two very important results have followed from this difference, and they are that in America the legislatures are much less free than in England, and the judiciary is made the guardian of the constitution. Since our legislatures can not change the constitution their acts are subject to its limitations. Since it is the function of the judiciary to interpret and apply the law, the courts have reserved the right to decide when legislation is in conflict with the fundamental law of the constitution and declare it void.

In America, where all our constitutions are written, a constitution may be defined as a written instrument, setting forth the fundamental law adopted by the state as the basis of its government, and alterable only by special process. Constitutional law, then, in the sense in which we will use it, is the body of rules and principles followed by the courts in the construction and application of this instrument.

§ 587. The American doctrine of constitutional law. -Professor Maine says the Supreme Court of the United States is the unique and important contribution of America to the science of government. He speaks, of course,

of its transcendent power to annul an act of the legislature approved by the executive, when, in the opinion of the court, the act in question is contrary to the provisions of the constitution. This power was disputed soon after the adoption of the constitution. It has never been denied since Chief Justice Marshall uttered those memorable words in his opinion in the case of Marbury v. Madison, 1 Cranch (U. S.) 177. He says: "It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the court must decide on the operation of each. So if a law be in opposition to the constitution, if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution, or conformably to the constitution, diregarding the law, the court must determine which of these conflicting rules governs the case. This is the very essence of judicial duty. If then the courts are to regard the constitution, and the' constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those, then, who controvert the principle that the constitution is to be considered in court as a paramount law are reduced to the necessity of maintaining that courts must close their eyes on the constitution and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void is yet, in practice,

completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure."

§ 588. Legal importance of the American doctrine of constitutional law. The American doctrine is in direct contrast to the European practice, where the main departments of government are left free to determine their own constitutional limitations. The practical result of the above is that European constitutions are in fact only moral or political checks upon governmental action, and their courts can not set aside laws and orders when in conflict with them, but are limited to their construction and application. In England, where Parliament is supreme, the courts have a duty to perform in interpreting statutes, but they have no power to disallow laws because in conflict with the constitution. In America, however, the constitution is made a legal restraint upon all governmental action. It thus vitally affects public and private interests, and much of our important litigation turns solely upon questions of constitutional construction.

When a law, order or judgment is held to be unconstitutional and void, the general rule is that private rights affected by them enjoy the same status as if the law, order or judgment never had been made. It has been said that when a law is declared void, it is the same in effect as if it never had been passed. The statement, however, is subject to some exceptions.

§ 589. Arrangement of the subject.-The subject

of constitutional law is treated in three chapters, this one dealing with the general conceptions of the subject, the second dealing with the fundamental rights guaranteed by the state and federal constitutions, and the third dealing with the federal government, its powers and duties and its relations with the state governments. The excellent arrangement used by Professor James P. Hall in his text on Constitutional Law is largely followed in these chapters.

§ 590. The separation of powers.-The federal and all of the state constitutions either expressly or impliedly provide for the theory of separation of powers. By this doctrine all the powers of government are divided between the three departments, the executive, the legislative and the judicial. Each of these departments is supreme in its sphere of action. It was thought that by thus dividing the powers that a check could be secured against the executive tyranny, an abuse which the fathers greatly feared. This scheme has resulted in two general principles of constitutional law, as follows: First, each department is limited to the performance of acts properly pertaining to the functions of that department. Second, each department in the performance of its peculiar functions is independent of control or regulation by the other department. Thus it has been held that a legislature can not impose duties nonjudicial in their nature upon the judiciary, and that judicial powers can not be exercised by the legislative or the executive departments. It has also been held that the governor of the state can not be made a defendant to a proceeding before the court, since that would violate the theory of complete separation of powers. There are exceptions to these general rules, a discussion of which is prevented by the limits of space.

§ 591. Fundamental constitutional rights.-Perhaps the most important branch of constitutional law is that dealing with the fundamental rights. The framers of our constitution thought that there were some individual rights, such as those of life, liberty and property, with which the government should not arbitrarily interfere, consequently they wrote them into our constitution, and they can not now be altered or impaired except by constitutional amendThe purpose of this chapter is to briefly review these fundamental rights and to determine their scope and meaning.

ment.

§ 592. Citizenship and naturalization.-Citizenship is membership in a political community or group. In this country there are two kinds of citizenship and allegiance