The importance of legal processes The principal effect of this distinction between the reign of law in England and the ordinary form of constitutional government in other countries, according to Dicey, is "that foreign constitutionalists have, while occupied in defining rights, given insufficient attention to the absolute necessity for the provision of adequate remedies by which the rights they proclaimed might be enforced." He points out how the French Constitution of 1791 proclaimed liberty of conscience, liberty of the press, the right of public meeting, and the responsibility of public officers under the law. "But there never was a period in the recorded annals of mankind," he adds, with a not inexplicable touch of exaggeration, "when each and all these rights were so insecure, one might almost say, so completely non-existent, as at the height of the French Revolution." And he continues: "On the other hand, there runs through the English constitution that inseparable connection between the means of enforcing a right and the right to be enforced, which is the strength of judicial legislation. The juristic law, ubi jus ibi remedium, becomes from that point of view something much more important than a mere tautologous proposition. In its bearing upon constitutional law, it means that the Englishmen whose labors gradually framed the complicated set of laws and institutions which we call the Constitution, fixed their minds far more intently on providing remedies for the enforcement of particular rights or (what is merely the same thing looked at from the other side) for averting definite wrongs, than upon any declaration of the Rights of Man or of Englishmen. The Habeas Corpus Acts declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." It is this third characteristic of the reign of law that is 1 Dicey The Law of the Constitution, p. 194. United above all the attribute of constitutional government in the Due United States. The "Founding Fathers" themselves of law clearly understood its significance and its importance. in the Alexander Hamilton, replying in Number 84 of The States Federalist to the charge that the Constitution of 1787 was defective, because it contained no Declaration of Rights, remarked that "bills of rights are, in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. Such was Magna Charta, obtained by the barons, sword in hand, from King John. Such was the Petition of Right, assented to by Charles I in the beginning of his reign. Such also was the Declaration of Right presented by the Lords and Commons to the Prince of Orange in 1688, and afterward thrown into the form of an act of Parliament called the Bill of Rights. It is evident, therefore, that, according to their primitive signification, they have no application to constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing. 'We, the People of the United States, to secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.' Here is a better recognition of popular rights than volumes of those aphorisms which make the principal figure in several of our State bills of rights, and which would sound much better in a treatise of ethics than in a constitution of government." The Federal Constitution, Hamilton reminded his readers, declared and defined the rights of citizens with respect to the organization and administration of their government. It prescribed the processes by which men's rights should be determined in other cases. It specified the manner in which alone these rights and processes might be changed. Ultimate security for the reign of law The fundamental principle of the American Constitution These were the primary securities for the reign of law and for the rights of men. Ultimately the security for the maintenance of a reign of law must depend on public opinion, and on the general spirit of the people and of the government. But where public opinion demands that the law be supreme in a state, a written people's constitution, which makes the fundamental law less easy to alter than the ordinary rules of conduct enforced by the state, furnishes a more solid basis for the reign of law than that which exists in a country like England, where the ordinary lawmaking body possesses the authority of a legal sovereign. In England the officers charged with the enforcement of law, including the judges themselves, are legally subordinate to the official lawmakers, the King and the members of Parliament. The majority of the House of Commons are, in effect, the court of last appeal. But in the United States no ordinary body of lawmakers holds the ultimate power. The American Constitution makes every public servant equally responsible for maintaining the supremacy of the law of the land. It gives judges in particular a stronger and more independent position than they can hope to enjoy in a land, like England, where their decisions must always be promulgated in the name of a king-never in that of the people. This enables them to create general rights by the decision of particular cases with greater assurance and effect, as long as they are sustained by the opinion of the people. Time was, when the Constitution of the United States was but a few thousand words engrossed on parchment. Since then, a long line of judicial decisions, construing every word and phrase, has made American constitutional law a veritable part of that "lawless science" of the law, which Tennyson so picturesquely and yet precisely describes: That codeless myriad of precedent, That wilderness of single instances. Yet American constitutional law is not, strictly speaking, a lawless science. There runs through it all one fundamental principle, the principle which in the last analysis distinguishes the true commonwealth from inferior kinds of states. There are many judicial decisions, as well as pronounce- The Topeka ments by the framers of constitutions and other statesmen, Ironworks which declare this fundamental principle of constitutional Case government in the United States. Perhaps there is none, however, which makes it so plain as the opinion of Justice Miller of the Supreme Court in the great case of the Citizens Savings and Loan Association of Cleveland, Ohio, against the City of Topeka, Kansas, decided in 1874.1 This was a case involving the validity of the action of the Topeka city government in repudiating a debt which it had contracted for the purpose of encouraging and assisting a wrought-iron bridge-manufacturing and ironworks company to establish and operate a plant in that city. The city government had issued a hundred thousand dollars' worth of bonds, acting under the authority of certain laws passed by the Kansas State legislature, particularly an act which specifically granted to cities like Topeka the power to "encourage the establishment of manufactories and such other enterprises as may tend to develop and improve such city," either by direct appropriation from the general fund or by the issuance of bonds. In this instance the enterprise seems not to have prospered. At all events, the city presently withdrew its support and refused to make further appropriations for meeting the interest on the bonds. The bondholders sued for the money that was due them. It was conceded that the city had taken in due form all the steps required by the act for issuing the bonds, 20 Wall. 655. The and that the language of the act was broad enough to justify the action of the city officials, provided that the act itself was within the constitutional authority of the legislature. The city defended the repudiation of its obligation on the ground that the law was in fact unconstitutional. The Supreme Court took the same view of the case, holding that the legislature had no right to pass such an act, that the proceedings of the city government in connection with the bond issue were, therefore, unlawful, and that the bondholders consequently were not entitled to receive any interest on their bonds, or even to recover the principal of their loan from the city. Justice Miller begins his justification of this decision by laying down the proposition that debts contracted by municipal corporations must be paid, if no other means are available, out of taxes which they may lawfully levy, and that all contracts creating debts to be paid in the future, not limited to payment from some other source, imply an obligation to pay by taxation. It follows that in this class of cases the right to contract must be limited by the right to tax, and if in the given case no tax can lawfully be levied to pay the debt, the contract itself is void for want of authority to make it. It is, therefore, to be inferred that when the legislature of the State authorizes a county or city to contract a debt by issuing bonds, it intends to authorize the county or city to levy such taxes as are necessary to pay the debt, unless there is in the act itself, or in some general statute, a limitation upon the power of taxation which repels such an inference. Hence, unless the Kansas legislature had the right to authorize the counties and towns of that State to levy taxes to be used in aid of manufacturing enterprises, conducted by individuals or private corporations for purposes of gain, the law was void, and the bonds issued under it must also be void. Justice |