Characteristics of American Constitutions.-The American constitutions, especially the Federal constitution, and to a large degree those of Latin America which are modeled upon that of the United States, possess certain features which distinguish them generally from the constitutions of Europe and Asia.
In the first place they are in large measure instruments of grants and prohibitions of power and not merely bodies of fundamental law for the organization of the government. They are characterized by the detail with which they define and enumerate the powers of the executive,the legislature, and the courts, and by the same detail with which they impose express limitations and prohibitions upon the powers of the public authorities, and especially of the legislature.
These limitations and prohibitions are found not only in the text proper of the constitution itself but also in elaborate “bills of rights,” which precede the formal text (in the federal constitution they are found in the first ten amendments), The effect is to create two distinct domains or spheres, one of liberty within which the individual is allowed freedom of action, and the other a domain of authority within which the government is free to act or can act subject to restrictions.
Thus, as Burgess remarks, the American constitutions are instruments not only of government but also of liberty. One of their distinctive merits is that they insure protection to the minority against the possible tyranny and oppression of the majority.
The action of the people, says Bryce, in
“putting certain rules out of the reach of temporary impulses springing from passion or caprice is a recognition of the truth that majorities are not always right and need to be protected against themselves by being obliged to recur, at moments of haste or excitement, to maxims they had adopted at times of cool reflection.”
Some of the recently adopted Constitutions of Europe with their elaborate bills of rights approximate in this respect the American type, but there is one important difference between them and the American constitutions. In the United States the sphere of individual liberty created and delimited by the constitution is protected against invasion or encroachment on the part of the government by being placed under the guardianship of the judiciary, whereas in Europe, with a few exceptions to be discussed later, it is not.
As is well known, if the legislature or the executive or any local authority in the United States violates any prohibition or restriction set by the constitution to its authority, the individual who suffers injury in consequence of it may appeal to the courts and have the unconstitutional act declared null and void.
In this way constitutional prohibitions are enforceable through judicial process the government is kept strictly within the sphere marked out for it by the constitution, the legislature is not the judge of its powers, the constitution is distinctly what it purports to be, namely the supreme law of the, state, paramount in authority and superior in dignity and validity to all other law.
In other countries where the constitution is not thus placed under the guardianship of the courts it manifestly cannot be the supreme law , in the last analysis it is on a footing of equality with ordinary statutory law and has only such binding force as the legislature in its discretion chooses to recognize.
Americans naturally believe that their solution of the problem is the only one by which the supremacy of the constitution over ordinary legislation can be assured and by which the liberty of the individual as defined and guaranteed by the, constitution can be safeguarded.
Role of the Constitution as the Protector of Liberty :-
It is not to be concluded, however, that liberty cannot and does not exist in countries Whose constitutions contain no bills of rights or formal prohibitions on the legislative power, or where, if they do, the judiciary is incompetent to enforce them. Professor John, W.Burgess, in a,book entitled. The Reconciliation of Government with Liberty (1915), maintains that most of the constitutions outside the United States are defective for this reason.
Concluding a detailed examination of the existing constitutions of Europe from the point of view of the manner in which they define and guarantee individual liberty, he says, I cannot, therefore, consider the present constitution of the European states as offering any satisfactory solution of the great problem of the reconciliation of government with liberty. Liberty is sacrificed to government in them all.
Referring to the lack of a bill of rights in the present constitution of France and quoting the 16th article of the famous French Declaration of the Rights of Man of 1789, to the effect that every society in which the guarantee of rights is not assured has no constitution, he says,
“In plain English this means that there is no such thing as constitutional government without a series of constitutional limitations upon its powers imposed by the sovereign nation in behalf of individual liberty. According to this doctrine the present constitution of France is no constitution at all but simply a charter of government.”
What Burgess says in criticism of such constitution is in part justified. At the same time the actual degree of liberty which the people of a country enjoy cannot be accurately measured by the number and character of constitutional phrases respecting individual liberty. The constitutions of some of the Latin American states, excellent instruments from a theoretical or philosophical standpoint, are quite as profuse in their declarations regarding liberty as those of North America, but according to Burgess himself the history of these states has been in great measure the record of alternations between anarchy and despotism instead of steady progress in the reconciliation of government and liberty.
On the other hand, the constitutions of Great Britain and France impose no prohibitions or limitations whatever on the legislative power and are therefore fatally defective according to Burgess’s conception, and yet in both countries the degree of liberty actually enjoyed by the people is as large as in the United States, and in England it is probably larger.