Definition and scope of Constitutional law

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The starting- point for studying constitutional law should ideally be the same starting-point as for studying political philosophy, or the role of law and government in society. How is individual freedom to be reconciled with the claims of social justice? Is society founded upon a reciprocal network of rights and duties, or is the individual merely a pawn in the hands of state power?

These fundamental questions are often not pursued explicitly in the study of constitutional law. Constitutional law concerns the relationship between the individual and the state. As a historian has stated, law is not merely a matter of the rules which govern relations between private individuals (for example between husband and wife, or between landlord and tenant). Law also concerns the structure and powers of the state. The constitutional lawyer is always likely to insist that the relations between the individual and the state should be founded upon the governed by law.

But law does not exist in a social and political vacuum. Within a given society, the legal rules that concern relations between husband and wife will reflect that society’s attitude to marriage. So too the rules of constitutional law, that govern political relations, will within a given society reflect a particular distribution of political power. In a stable society, constitutional law expresses what may be a very high degree of consensus about the organs and procedures by which political decisions are taken.

Within a stable democracy, constitutional law reflects the value that people attach to orderly human relations, to individual freedom under the law and to institutions such as parliament, political parties, free elections and free press. Laws are the product of human decisions. As Lord Acton said, “Powers tends to corrupt and absolute power tends to corrupt absolutely”. But the weaknesses and imperfections of human nature are not a reason for discarding law as a means of regulating political conduct. The laws of football are often broken. But if we shoot the referee and tear up the rules, football as an organized activity ceases to exist.

Total disbelief in the value of the individual or in the possibility of public good is therefore a bad starting-point for studying constitutional law. But there is no need to go to the other extreme that in Great Britain we have a matchless constitution. Constitutional law is one branch of human learning and experience that helps to make life in today’s world more tolerable and less brutish than it might otherwise be.

Vocabulary notes

be reconciled with быть согласованным с

reciprocal network взаимная связь

pawn in the hands of state power залог в руках государственной власти

be pursued explicitly проводиться ясно

merely просто, только

attach to orderly human relations распространяться на

упорядоченные человеческие отношения

weaknesses and imperfections of human слабости и недостатки человеческой nature натуры

reason for discarding law основание для отступления от закона

tear up the rules нарушать правила

cease to exist прекратить существование

matchless constitution неподходящая конституция

make life more tolerable and less brutish сделать жизнь более терпимой и менее

жестокой

Task 2. Match the words

1. требования социальной справедливости a. rules of constitutional law

2. структура и полномочия государства b. claims of social justice

3. принять политические решения c. attitude to marriage

4. нормы конституционного права d. structure and powers of the state

5. отношение к браку e. take political decisions

Task 3. Agree or disagree

1. Law is a matter of rules which govern relations between private individuals.

2. Law exists in a social and political vacuum.

3. The laws of football are rarely broken.

4. Constitutional law is one branch of human learning.

5. Constitutional law reflects the value that people attach to orderly human relations.

Task 4. Answer the questions

1. What is constitutional law based on?

2. How can law be defined?

3. What is the main principle of a constitutional lawyer?

4. How does law reflect the life of a given society?

5. In which way does constitutional law act in a stable society?

6. What does constitutional law reflect in a stable society?

7. How can we define constitutional law?

8. How are laws made?

Text 2.

Task 1. Read and translate the text

The Supreme Law of the Land

The Constitution of the United States sets forth the nation’s fundamental laws. It establishes the form of the national government and defines the rights and liberties of the American people. It also lists the aims of the government and methods of achieving them. The Constitution was written to organize a strong national government for the American states. Previously, the nation’s leaders had established a national government under the Articles of Confederation. But the Articles granted independence to each state. They also lacked the authority to make the states work together to solve national problems.

After the states won independence in the Revolutionary War (1775-1783), they faced the problems of peacetime government. The states had to enforce law and order, collect taxes, pay a large public debt, and regulate trade among themselves. They also had to deal with Indian tribes and negotiate with other governments. Leading statesmen, such as George Washington and Alexander Hamilton, began to discuss the creation of a strong national government under a new constitution.

Hamilton helped bring about a national convention that met in Philadelphia< Pennsylvania in 1787 to revise the Articles of Confederation. But a majority of the delegates at the convention decided instead to write a new plan of government – the Constitution of the United States. The Constitution established not merely a league of states but a government that exercised its authority directly over all citizens. The Constitution also defined clearly the powers of the national government. In addition, it established protection for the rights of the states and of every individual.

The Constitution consists of a preamble, seven articles and 26 amendments. It sets up a federal system by dividing powers between the national and state governments. It also establishes a balanced national government by dividing authority among three independent branches – the executive, the legislative and the judicial. The executive branch enforces the law, the legislative branch makes the law and the judicial branch explains the law. The executive branch of the national government is usually represented by the President, the legislative branch by Congress and judicial branch by the Supreme Court.

Federal powers listed in the Constitution include the right to collect taxes, declare war and regulate trade. In addition to these delegated, or expressed powers (those listed in the Constitution), the national government has implied powers (those reasonably suggested by the Constitution). The implied powers enable the government to respond to the changing needs of the nation. For example, Congress had no delegated power to print paper money. But such a power is implied in the delegated powers of borrowing and coining money.

There are some powers that the Constitution does not give to the national government or forbid to the states. These reserved powers belong to the people or to the states. State powers include the right to legislate on divorce, marriage and public schools. Powers reserved for the people include the right to own property and to be tried by a jury. In some cases, the national and state governments have concurrent powers – that is, both levels of government may act. The national government has supreme authority in case of a conflict.

The Supreme Court has the final authority to explain the Constitution. It can set aside any law – federal, state or local – that conflicts with any part of the Constitution.

Text 3.

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