Читать книгу The Essentials of American Constitutional Law - Francis Newton Thorpe - Страница 3

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The principles of American constitutional law are the foundation of all judicial decisions, and it is (as Marshall observes) “the province and duty of the Courts to say what the law is.” Judicial decisions, however, are technical, are handed down by experts, and set forth authoritatively as results of experience which the junior student of the law is likely to find difficult, if not incomprehensible. But to attempt merely to simplify the law, or its interpretation by the Courts, is likely to result in variation from the original spirit and purpose of the law: because decisions are essentially a reduction of questions at issue to a principle, and laws themselves are (or ought to be) simple, clear, comprehensive, and complete.

For purposes of study or instruction it is necessary to bring the principle involved in a law (be it the Supreme Law of the Land,—that is, the Constitution, a Treaty, or an Act of Congress; or a State Constitution, or an Act of a State Legislature) within the compass of a principle, or a fundamental, by examination of an issue, or issues, in which the principle is involved. There must ever be before the Court the issue and the law, and the law itself may be an issue, in the American system of government which recognizes the authority of the Court to pass on the constitutionality of the law.

But principles are not numerous. Possibly in Nature there is but one basic principle and all our so-called “natural laws” are but aspects of that principle as the human mind conceives or recognizes it. The analogy in government permits the assertion that the principles of constitutional law are few. Possibly they are severally aspects of one principle: that of sovereignty. To the student of the law, especially to junior students, principles are matters of memory rather than of understanding. It is a vigorous and essentially mature mind that can reduce a complex issue to such simple form as to deduce the principle on which it rests.

Books on American constitutional law should be simple, comprehensive, authoritative, and specially adapted to the conditions under which the subject is pursued. In later years the subject is usually approached through two books: a treatise on constitutional law, and a book (collection) of leading cases illustrative of the principles involved. The tendency is toward bulky volumes. Meanwhile other subjects than constitutional law,—other branches of the law,—must be pursued. Multiplicity of subjects is characteristic of the curriculum whether at Law School or at College or University. Time is brief: studies are many. The necessary result is concentration upon the essentials of a subject,—careful isolation of its principles together with familiarity with authoritative illustrations of their application. This means a small, compact, authoritative book on the subject. There are few principles,—there are innumerable applications of them. Values are twofold,—perception of the principle, and understanding of its application. The question is not “What principle?” but rather, “What application?” Thus the student of law may wisely be led to consider, to weigh, to study the great or the leading application of a principle: that is, he is properly directed to the important decisions of the Courts of Law. In America, these decisions are handed down by the Supreme Courts of States and the Supreme Court of the United States. From these decisions the principles of our constitutional law may be derived. Great writers, like Hamilton, Madison, Kent, Story, or Cooley, must be listened to: but it is the Court of Law that speaks with authority. Our great writers on constitutional law and our great judges sitting as Courts of Law practically agree as to what comprise the principles of our constitutional law.

Whether the principles of the law are reached by induction or by deduction does not affect the principles. Judicial decisions illustrate both methods of approach. Stated broadly,—a treatise on constitutional law sets forth its principles and cites decisions as illustrations of their application; a collection of cases provides many illustrations from which the principles may be, or are, deduced. By combining the treatise and the case-book (and the present volume may be used in connection with any of the current “Collections” of “Leading Cases”) the benefits of both methods,—deductive and inductive,—are realized. Whether the two sorts of books are used together, or in succession, must depend upon the time, the place, and the importance assigned to the subject itself. Highly beneficial results have followed when a first semester has been given to the treatise, and a second to the cases, whether in a “Collection” (of which there are several of highest value now in use), or in the original “Reports.”

But constitutional law is more than a technical subject for a Law School: it is a branch or part of the study of government,—of political philosophy so-called. It is a branch of “Politics” as Aristotle uses that word. Hence it is also a “culture” study, entitled to a respectable place in the curriculum of College or University. But as such a study, it must also be pursued as are other branches of philosophy. Whatever part it has as dialectics it also has part in the interpretation of the government,—of the sovereignty behind that government,—under which we live. The difficulties of constitutional law are also the difficulties of government and of philosophy itself.

Shall the college man leave college with a fair knowledge of the principles of the Supreme Law under which he lives? That is the question. Whatever book or books or method best brings that consummation is the best.

F.N.T.

University of Pittsburgh.