We ‘the people’ clause of a constitution

We the People of India- Indian Constitution

The People.”

The opening words of the preamble proclaim that the Constitution of the Commonwealth of Australia is founded on the will of the people whom it is designed to unite and govern. Although it proceeds from the people, it is clothed with the form of law by an Act of the Imperial Parliament of Great Britain and Ireland, the Supreme Sovereign Legislature of the British Empire. The legislative supremacy of the British Parliament is, according to Dicey and all other modern jurists, the keystone of the law of the British Constitution. John Austin holds (Jurisprudence, vol. I. pp. 251–255) that the sovereign power is vested in the King, the House of Lords, and the House of Commons or electors. Referring to Austin’s definition, Dicey points out that the word “sovereignty” is sometimes employed in a political rather than in a strictly legal sense. That body is politically sovereign or supreme in a State, the will of which is ultimately obeyed by the citizens of the State. In this sense of the word the electors of Great Britain may be said to be, together with the Crown and the Lords, or perhaps in strict accuracy, independently of the King and the Peers, to be the body in which the political sovereignty is vested. (Dicey, Law of the Constitution, p. 67.)

SOVEREIGNTY OF THE PEOPLE.—In the United States the political as well as the legal sovereignty of the people has been generally recognized ever since the Declaration of Independence. John Wilson, one of the framers of the American Constitution, in addressing the Pennsylvania State Convention in exposition and defence of that instrument said:—

“When I had the honour of speaking formerly on the subject I stated in as concise a manner as possible the leading ideas that occurred to me to ascertain where the supreme and sovereign power resides. It has not been, nor I presume will be denied that somewhere there is, and of necessity must be, a supreme absolute and uncontrollable authority. This I believe may justly be termed the sovereign power; for, from that gentleman’s (Mr. Findlay’s) account of the matter it cannot be sovereign unless it is supreme;

for, says he, a subordinate sovereignty is no sovereignty at all. I had the honour of observing that if the question was asked where the supreme power resided, different answers would be given by different writers. I mentioned that Blackstone would tell you that in Britain it is lodged in the British Parliament; and I believe there is no writer on this subject on the other side of the Atlantic but supposed it to be vested in that body. I stated further that if the question was asked of some politician who had not considered the subject with sufficient accuracy, where the supreme power resided in our Government, he would answer that it was vested in the State Constitutions. This opinion approaches near the truth, but does not reach it, for the truth is the supreme absolute and uncontrollable authority remains with the people. I mentioned also that the practical recognition of this truth was reserved for the honour of this country. I recollect no Constitution founded on this principle; but we have witnessed the improvement and enjoy the happiness of seeing it carried into practice. The great and penetrating mind of Locke seems to be the only one that pointed towards even the theory of this great truth.” (Elliot’s Debates on the Federal Constitution, vol. ii., pp. 455, 456.) Cited, Roger Foster’s Comment. on the Constit. (1895), I., p. 107.

The Constitution of the United States was not ordained and established by the States, but, as the preamble declares, by “the people of the United States.” It was competent for the people to invest the general government with all the powers which they might deem proper and necessary; to extend or restrain these powers, according to their own good pleasure, and to give them a paramount and supreme authority. (Martin v. Hunter’s Lessee, 1 Wheat. 304–324; Chisholm v. Georgia, 2 Dall. 419; Brown v. Maryland, 12 Wheat. 455. Noted in Baker, Annot. Const. (1891), p. 1.)

The Government of the American Union is a Government of the people. In form and in substance it emanates from them. Its powers are granted by them and are to be exercised on them and for their benefit. (Per Marshall, C.J., McCulloch v. Maryland, 4 Wheat. 316. Id.)

The expressions “the people of the United States” and “citizens” are synonymous and mean the same thing. They both describe the political body which according to American institutions, forms the sovereignty, holds the power and conducts the Government through its representatives. The members of that body are called the “sovereign people,” and every citizen is one of this people and a constituent member of the sovereignty. (Dred Scott v. Sandford, 19 How. 393. Id.)


Commentaries on the Constitution of the Commonwealth of Australia -Garran, Robert, Sir (1867-1957)