578 CONSTITUTIONAL LAW 



commentators upon that instrument contend that it does. Some 

 say that in the exercise of his power of promulgating the laws, 

 the Emperor may look into the content of any measure, and that, 

 if in his opinion the measure is one of constitutional law and has not 

 received the proper majority in the Bundesrath for making consti- 

 tutional change, he may refuse promulgation. But the Reichstag 

 does not accept this doctrine. Moreover, it is the practice in the 

 Imperial legislature to allow the passage of a law by that body 

 which is not authorized by any power at the time vested in that body 

 by the constitution, provided it has received the necessary majority 

 in the Bundesrath to make a constitutional change. Such a law 

 is not inserted in the text of the constitution as an amendment 

 to that instrument, but it is incorporated in the ordinary statutes, 

 and the question arises at once as to how it may be repealed, whether 

 by the method for making or repealing ordinary law or by that neces- 

 sary for making constitutional changes. 



Under such a practice, the whole question as to what is constitu- 

 tional law and what is ordinary law becomes confused. From the 

 point of view of written constitutions, constitutional law is the law 

 provided in the constitution. From the point of view of unwritten 

 constitutions, on the other hand, constitutional law is that part of 

 the law which ought to be regarded as fundamental and organic. 

 There is sufficient opportunity for difference of opinion in regard to 

 the first kind of constitutional law, but in regard to the second 

 there is no complete agreement on the part of any two minds. 

 Of course, the two kinds of constitutional law ought to agree exactly. 

 What, from a true philosophical point of view, is fundamental and 

 organic ought to be in the constitution, and, vice versa, what is in 

 the constitution ought to be fundamental and organic, nothing more 

 and nothing less. But in practice there is a wide difference as to 

 result between the interpretation of a written instrument and indi- 

 vidual opinion, or popular opinion, or legislative opinion, or execu- 

 tive opinion, as to what part of the law ought to be regarded as 

 fundamental and organic and what as ordinary. In the first there is 

 some measure of certainty and continuity; in the second, on the other 

 hand, there is very little. And when the two processes of deter- 

 mination are authorized in the same political system, they are bound 

 to introduce inextricable confusion. The root of the difficulty is to 

 be found in making the governmental organs the organs for constitu- 

 tional amendment. The personnel of the government, especially of 

 the legislature, may be used for making constitutional law. It 

 would be inconvenient, and perhaps injurious, if it could not be. 

 But it is not necessary that this should be effected through the govern- 

 mental organizations. That personnel may be specially organized 

 for this purpose, as the French constitution provides, by uniting all 



