A Constitution As A Landmark Of Modern History

Ljubomir Madzar

Montenegrin Journal of Economics, 2006, vol. 2, issue 3, 35-56

Abstract: The paper is written on the occasion of the newly published The Heritage Guide to the Constitution (of the United States). The book is seen as a truly informative and enlightening source on the wide spectrum of the features of this first and in many respects the most prominent among the modern constitutions. The key characteristic, permeating the entire text of this epochal document and unifying it into a coherent, indivisible whole, is the emphasis on liberty on various levels of social organization and in all segments of the legal system. The universally adhered to principle of decemtralization is seen as a major avenue of operationalizing the freedom as the key value and as an organizational tenet underlying the totality of the legal system. This principle is identified in the too main political relations which appear to be the chief area to be regulated by the legal system. The first relation is implemented by the provisions according to which the authority of the institutions at the federal level consists only of prerogatives which are explicitely assigned to them by the Constitution; whatever is not mentioned in the constitutional provisions is understood to belong to the states. The same pattern is recognizable in the legal ordering of the second relation which is even more socially important - that between the free individuals and the state. The state can perform only the functions which are explicitely provided for by relevant legal documents and the citizens are free to undertake whatever is not prohibited by the Constitution and the laws emanating therefrom. Such ramparts to individual freedom as Habeas Corpus, The Bill of Attainder and the prohibition of the enacting of the ex post facto laws are discussed to some length. The set of provisions regulating business and financial relations - particularly the obligation of contract, the bankruptsy clauses, the regulation of the foreign trade and the trade among the states - constitute another wide area which is seen as an important segment of the Constitution and is discussed to some length in the paper. The third wide area discussed in the paper are financial constraints set upon the federal authorities and the strict discipline imposed on the executive branch when it comes down to spending the taxpayers' money. Taken in its totality, the Constitution is, among other, seen as an impressive piece of legal engineering, an unsurpassed instance of shaping the very foundations of the legal system. It is a paradox of sorts that such a brilliant piece of legislation is literally the oldest among all the constitutions of the modern age.

Date: 2006
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