Source of power is more a jurisprudential question than a question of written
law. Claims that are made for it will obviously depend on the historical, social
and political circumstances in which the constitution is framed.
Where there is an ancient constitution such as there is in the United Kingdom
the claim may be lost in the mists of time. In any event, the way in which
theorists seek to articulate the claim will typically change over time. For
example, in medieval times before the Reformation and under the influence of
the tenets of natural law the King ruled “sub deo et sub lege” that is, under
God and the law. The law, however, was not a human creation but the divine
will which ordained how humans behave, so the law was really God’s
expression of temporal authority.
By contrast, the Constitution of the United States, which was formulated
following a successful revolution against Great Britain, is simple, explicit and
emphatic concerning its source of power. It provides as follows:
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
and establish this Constitution for the
United States of America.
This is strong
and clear. The constitution is the creation and the property of
“the People of the United States”.
It is they who “ordain
and establish” the
“Constitution for the United States of America”.
It is interesting then, that as
late as 1956 the United States enacted the Congressional Record Act 1956
(US), which instituted as the national motto the words “In God we trust”.
These words now appear on United States currency.
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Administrative Law
Where an administrative decision is adverse to a person administrative law may
provide them with a remedy. There are two parts to administrative law – the
subject of the remedies and the remedies themselves.
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This practice has been challenged in the courts on the basis that it offends
the First Amendment, which seeks to separate church and state. It provides in this
regard that “Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of speech”. This
challenge was considered by the United States Court of Appeals for the Ninth
Circuit in Aronow v United States, 432 F.2d 242 (9th cir. 1970). The court dismissed
the challenge. In doing so it said at p 243: "It is quite obvious that the national
motto and the slogan on coinage and currency 'In God We Trust' has nothing
whatsoever to do with the establishment of religion. Its use is of patriotic or
ceremonial character and bears no true resemblance to a governmental
sponsorship of a religious exercise”.
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