Hostname: page-component-7479d7b7d-qs9v7 Total loading time: 0 Render date: 2024-07-13T16:08:18.704Z Has data issue: false hasContentIssue false
  • English
  • Français

The Constitution as Instrument and as Symbol*

Published online by Cambridge University Press:  02 September 2013

Edward S. Corwin
Edward S. Corwin
Affiliation:
Princeton University
Get access Rights & Permissions [Opens in a new window]

Extract

On an early page of his celebrated Constitutional Limitations, Judge Cooley defines “constitution” in the following curt terms: “That body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.” Returning later to the subject, he quotes with approval a more elaborate conception, couched in these words: “What is a constitution, and what are its objects? It is easier to tell what it is not than what it is. It is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the framework of the political government, and necessarily based upon the preëxisting condition of laws, rights, habits, and modes of thought. There is nothing primitive in it, it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny. A written constitution is in every instance a limitation upon the powers of government in the hands of agents; for there never was a written republican constitution which delegated to functionaries all the latent powers which lie dormant in every nation, and are boundless in extent, and incapable of definition.”

Type
Research Article
Information
American Political Science Review , Volume 30 , Issue 6 , December 1936 , pp. 1071 - 1085
Copyright
Copyright © American Political Science Association 1936

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Cooley, , Constitutional Limitations (2nd ed., 1871), pp. 2, 38Google Scholar. Italics are mine.

2 Speech at Topeka, Kansas, Jan. 29, 1936.

3 Paine, , Political Writings (1837), I, pp. 45–46Google Scholar.

4 For this and the quotation in the next paragraph, see Schechter, Frank I., “The Early History of the Tradition of the Constitution”, in this Review, Vol. 9. pp. 707, 720 (Nov., 1915)Google Scholar.

5 Deliesseline, Elkinson v., 8 Fed. Cas. 593Google Scholar.

6 Quoted by Green, Fletcher M. in Pubs. of Emory Univ., Vol. 22, No. 5, p. 7 (May, 1936)Google Scholar.

7 Benton, , Abridgment, etc., IV, 266Google Scholar. See also his further statement (ibid., 308): “The gentlemen … still view it [the Constitution] as a model of perfection. They are certainly at liberty still to entertain that opinion. Every man has a right to erect his idol in this land of liberty, and to fall down and worship it according to the dictates of his conscience.”

8 Cong. Record, June 18, 1936, p. 10013Google Scholar.

9 See Ginsburg, Mr. Benjamin‘s communication to the Washington Evening Star, Sept 15, 1936Google Scholar; also the New York Times of July 5, 1936.

10 New York Times, May 5, 1936.

11 It is doubtless with the Liberty League in mind that ProfessorRadin, wrote recently: “The search for a new capitalist religion in the United States is rapidly taking the form of consecrating patriotic symbols and multiplying rituals which will inevitably be associated with the existing type of economic organization”. New York Univ. Law Quar. Rev., Vol. 13, p. 505Google Scholar.

12 In support of the immediately preceding paragraphs, see generally my Commeree Power versus States' Bights, published by the Princeton University Press on August 4 last.

13 Brant, , Storm over the Constitution, p. 129Google Scholar.

14 Arnold, , Symbols of Government, p. 224Google Scholar.

15 Gasset, Ortega y, Revolt of the Masses, pp. 176, 183Google Scholar.

Submit a response

Comments

No Comments have been published for this article.