Eleanor Finch
The justification for the state refers to the source of legitimate authority for the state or government. While there is no single, universally accepted justification, most political ideologies have their own justifications, and thus their own vision of what constitutes a legitimate state. The constitutions of various countries codify views regarding the purposes, powers, and forms of their governments, but they tend to do so in rather vague terms. For example, the US Constitution's preamble clearly communicates the intentions of the framers and the purpose of the document, but it does not define government powers or individual rights. The constitutions of other countries with a culture of justification, such as Germany, the UK, Canada, and South Africa, tend to display features such as a broad scope of rights and the use of the doctrines of balancing and proportionality to assess the justifiability of an act.
| Characteristics | Values |
|---|---|
| Purpose | To set out the intentions of the framers and the purpose of the document |
| Powers | Defines government powers |
| Rights | Defines individual rights |
| Judicial review | Explicitly justified by John Marshall, James Wilson, and Oliver Ellsworth of Connecticut |
| Supremacy | The Constitution and federal laws and treaties are supreme over state laws |
| Amendments | Must be properly adopted and ratified before they change the Constitution |
| Limits on state power | A state shall not violate a citizen's privileges or immunities; shall not deprive any person of life, liberty, or property without due process of law; and must guarantee all persons equal protection of the laws |
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What You'll Learn
The right to justification
The constitutions of different countries may codify vague views on the purposes, powers, and forms of their governments, leaving specific laws, courts, and political actions to provide further clarification. For example, the US Constitution's Fourteenth Amendment (1868) expanded constitutional protections by granting citizenship to former slaves and imposing new limits on state power, including guaranteeing equal protection under the law and prohibiting the deprivation of life, liberty, or property without due process.
Some political ideologies, such as anarchism and communism, challenge the very notion of a justified state, arguing that human societies would be better off without centralised authority. However, most political ideologies acknowledge the need for some form of government and focus their disagreements on the proper role and form it should take.
The recognition of the right to justification varies internationally, with countries like Germany, the UK, Canada, and Israel being considered paradigmatic examples of states with a culture of justification. These countries are characterised by features such as the reviewability of all governmental actions, a broad scope of rights, and the use of balancing and proportionality doctrines to assess the justifiability of state actions.
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The role of government
In the context of the United States Constitution, the role of the government is outlined in the Preamble, which sets the stage for the entire document. It states: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America." This preamble communicates the intentions of the framers and expresses the aspirations of "We the People" for their government and way of life.
One of the key roles of the government, as outlined in the Preamble, is to establish justice. This includes ensuring equal justice under the law, protecting the rights and liberties of citizens, and providing a framework for resolving disputes and enforcing laws. The Constitution also grants the government the power to levy taxes, regulate commerce, establish a uniform rule of naturalization, coin money, punish counterfeiting, establish post offices and post roads, promote scientific progress, and raise and support armies and navies.
The U.S. Constitution also places limits on the powers of the government to protect the rights and liberties of citizens. The Fourteenth Amendment, for example, prohibits states from violating a citizen's privileges or immunities and guarantees equal protection under the law. The Fifth Amendment protects citizens from being deprived of life, liberty, or property without due process of law. These limitations ensure that the government's powers are balanced and that the rights of the people are upheld.
Additionally, the Constitution outlines the role of the federal government in relation to the state governments. Article VI establishes the supremacy of the Constitution and federal laws over state laws, ensuring that state judges are legally bound to follow federal laws and the Constitution in cases of conflict. The amendment process, as outlined in Article V, also plays a crucial role in shaping the government's powers and responsibilities, allowing for flexibility and adaptability in the nation's governing document.
In conclusion, the role of government according to the constitution, specifically in the context of the United States, involves establishing justice, ensuring domestic tranquility, providing for the common defence, promoting the general welfare, and securing the liberties of its citizens. The Constitution outlines the powers and limitations of the government, with subsequent amendments further shaping and refining these roles to adapt to the evolving needs of the nation.
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The form of government
The US Constitution is the supreme law of the land, establishing the federal government, defining its powers and structures, and protecting the basic rights of all Americans. The Constitution creates the form of government in the United States, which is a constitutional and federal republic.
A constitutional republic is a system in which the people select representatives to serve in political office for a temporary period, and both citizens and their governing officials must follow the rules established in the Constitution. This is in contrast to a direct democracy, where citizens vote directly on policies rather than electing representatives. The Constitution also establishes a federal republic, where the federal government has limited powers, and most powers are retained by the state governments.
The Constitution's status as the supreme law of the land means that any action taken by the federal government that is authorised by the Constitution takes precedence over any conflicting state or local laws. However, the federal government's actions must also be in accordance with the Constitution, or they would be deemed illegal. This system of checks and balances ensures that no one branch of government holds too much power, and there are mechanisms in place to hold officials accountable, such as impeachment for judges and executive officers.
The Constitution also provides for the creation of independent agencies, such as commissions, which are appointed by the President and confirmed by the Senate. These agencies have a degree of independence but are also subject to scrutiny by the courts. The complex system of independence and interdependence among the branches of government helps maintain a balance of power and ensures that the government remains bound to its principles and promises.
The Constitution was written to be flexible and adaptable, as evidenced by its ability to meet the challenges of expansion, foreign wars, internal strife, and world relations. This adaptability allows for temporary departures from normal procedures in times of unprecedented need, while still maintaining the essential form of government established by the Constitution.
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Judicial review
The concept of judicial review was already established at the time of the Founding. The Privy Council had employed a limited form of judicial review to review colonial legislation and its validity under the colonial charters. There were several instances known to the Framers of state court invalidation of state legislation as inconsistent with state constitutions. Practically all of the Framers who expressed an opinion on the issue welcomed the existence of court review of the constitutionality of legislation. The only expressed opposition to judicial review came from Mercer, with a weak seconding from Dickinson.
Two landmark decisions by the US Supreme Court served to confirm the inferred constitutional authority for judicial review. In 1796, Hylton v. United States was the first case decided by the Supreme Court involving a direct challenge to the constitutionality of an act of Congress, the Carriage Act of 1794. The first American decision to recognize the principle of judicial review was Bayard v. Singleton, decided in 1787 by the Supreme Court of North Carolina's predecessor. Other notable state cases involving judicial review include Commonwealth v. Caton (Virginia, 1782), Rutgers v. Waddington (New York, 1784), and Trevett v. Weeden (Rhode Island, 1786).
The Judiciary Act of 1789 gave the Supreme Court original jurisdiction to issue writs of mandamus (legal orders compelling government officials to act in accordance with the law). The Supreme Court noted that the Constitution did not permit the Court to have original jurisdiction in this matter. Since Article VI of the Constitution establishes the Constitution as the supreme law of the land, the Court held that an Act of Congress that is contrary to the Constitution could not stand. In subsequent cases, the Court also established its authority to strike down state laws found to be in violation of the Constitution.
After World War II, many countries felt strong pressure to adopt judicial review, influenced by US constitutional ideas, particularly the idea of a system of constitutional checks and balances as an essential element of democratic government.
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The purpose of the preamble
The preamble to the US Constitution is an introductory statement that outlines the intentions of its framers and the purpose of the document. It is not a law itself, but it sets the stage for the Constitution and communicates the aspirations that "We the People" have for the government and the nation's way of life.
The Preamble states: "We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The first objective mentioned in the Preamble is "establish Justice," which was drafted during the summer of 1787 in Philadelphia. This objective reflects the framers' intention to create a fair and just society, where the government works to ensure that all citizens are treated equally under the law.
The Preamble also highlights the importance of "domestic Tranquility," indicating the framers' desire to create a peaceful and stable society, free from internal strife and conflict. This tranquility is to be achieved through the "common defense," where the government provides for the security and protection of its citizens, and the "general Welfare," where the government promotes the well-being and prosperity of the nation as a whole.
Finally, by securing the "Blessings of Liberty," the framers aimed to protect the freedoms and rights of individuals, ensuring that future generations could enjoy the benefits of a just and free society.
In conclusion, the purpose of the Preamble is to provide a clear and inspiring statement of the Constitution's goals and the ideals that the nation strives to achieve. It sets the tone for the entire document and serves as a reminder of the values that underpin the laws and principles of the United States of America.
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Frequently asked questions
The justification of the state refers to the source of legitimate authority for the state or government. There is no single, universally accepted justification of the state. The constitutions of various countries codify views regarding the purposes, powers, and forms of their governments, but they tend to do so in rather vague terms. For example, the US Constitution's preamble sets the stage for the Constitution, communicating the intentions of its framers and the purpose of the document, but it does not define government powers or individual rights.
One example of a justification for the state is the idea of the divine right of kings, which was widespread in feudal Europe. This theory states that kings derived their authority from God and could not be held accountable for their actions by any earthly authority. Another example is the Judeo-Christian concept of God ordaining rulers' power, as seen in the story of King Nebuchadnezzar in the Book of Daniel.
The culture of justification is the idea that it is the role of the courts to ensure that every act of the state that affects a person is substantively justifiable. Countries mentioned in this context include Germany, the UK, Canada, South Africa, and Israel.
Kumm's defense of the right to justification focuses on the relationship between democracy and human/constitutional rights. He argues that the right to justification applies to all state action, including acts of the executive and judicial decisions, and that any law or act should be justified not only procedurally but also substantively.
