The Unwritten Constitution Of The United States

Explores the little-understood relationship between the written Constitution and the many external factors that shape the interpretations of this foundational document.

Tiedeman's treatise on American constitutional law, exploring the unwritten rules that underpin the US government. He examines the philosophical and historical foundations of the American system, and explores its key tenets and principles. This work has been selected by scholars as being culturally important, and is part of the knowledge base of civilization as we know it. This work is in the "public domain in the United States of America, and possibly other nations. Within the United States, you may freely copy and distribute this work, as no entity (individual or corporate) has a copyright on the body of the work. Scholars believe, and we concur, that this work is important enough to be preserved, reproduced, and made generally available to the public. We appreciate your support of the preservation process, and thank you for being an important part of keeping this knowledge alive and relevant.

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Excerpt from The Unwritten Constitution of the United States: A Philosophical Inquiry Into the Fundamentals of American Constitutional Law Blackstone's definition of law has been gen erally accepted as in the main reliable, not only popularly, but also professionally. Indeed, the sci entific element of the definition, viz. That municipal law is a rule of conduct prescribed ey t/ze supreme power of t/ze state, has been so earnestly accentuated and elaborated by the master-minds who have truly dominated legal thought in England and in this country for the past half century - I refer, of course, to Bentham and Austin, - that the professional, as well as the popular, mind has been led into the adoption, as an axiomatic truth, of a most serious error concerning the origin and development of mu nicipal law.'except in the matter of form, the statement that municipal law is prescribed by the supreme power of the state is false and misleading, unless by the supreme power of the state is meant the aggre gation of all the social forces, both material and spiritual, which go to make up our civilization. But the meaning commonly attached to the words the supreme power of the state is that of the supreme power in the government, as distinguished from the people who compose the body politic. Austin and his followers admit that the law-making power is sub ject to moral and physical restraints, and that these restraints co-operate very largely in forming and modi fying the substantive law; but since no rule can be called a lav, which is not enforced by a sanction, prescribed by the law-making power, the moral in uences at work upon society cannot be said to create law. And even where a rule of law is for the first time enunciated by an English or American court, Austin claims that it first became a law when the court announced its decision. I do not suppose Austin intended to assert that the de Cision of the court was purely arbitrary; that it only reflected the sentiments of the occupants of the judicial bench. I cannot believe that he was uncon scious of the natural sequential development of the. About the Publisher Forgotten Books publishes hundreds of thousands of rare and classic books. Find more at www.forgottenbooks.com This book is a reproduction of an important historical work. Forgotten Books uses state-of-the-art technology to digitally reconstruct the work, preserving the original format whilst repairing imperfections present in the aged copy. In rare cases, an imperfection in the original, such as a blemish or missing page, may be replicated in our edition. We do, however, repair the vast majority of imperfections successfully; any imperfections that remain are intentionally left to preserve the state of such historical works."

It's often said, confirmed by survey data, that the American people are losing confidence in their government. But the problem may be the reverse--the government has lost confidence in the people. Increasingly the power to make decisions in our democracy has been shifted from Congress to the court system, forcing non-elected officials to make decisions which affect the lives of Americans. In a society which is based on the democratic elections of its officials, this is clearly backwards. Quirk maintains that what he calls "The Happy Convention," an informal and unwritten rearrangement of "passing the buck" of government powers, is done to avoid blame and approval ratings becoming lower for a particular person or party. For example, The Happy Convention assigns the power to declare and make war to the President. Congress and the Court play a supporting role--Congress, when requested, gives the President a blank check to use force--the Court throws out any challenges to the legality of the war. Everyone wins if the war avoids disaster. If it turns out badly, the President is held accountable. His ratings fall, reelection is out of the question, congressmen say he lied to them; his Party is likely to lose the next election. In this way, Quirk reminds us that The Happy Convention is not what the Founders intended for us. For democracy to work properly, the American people have to know what options they have. Courts and Congress argues the case for reestablishing the balance of powers between the courts, the Congress, and the Presidency.