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PRINCIPLES OF THE CONSTITUTIONAL

LAW OF THE UNITED STATES

CHAPTER I

INTRODUCTORY-PRELIMINARY DEFINITIONS

The constitutional jurisprudence of the United States is an especially complicated one, and its principles proportionately difficult of exposition and comprehension. This complexity is in the main due to the Federal character of our governmental system. A prerequisite to an accurate understanding of American public law is, therefore, a knowledge of the juristic nature of the Federal form of political organization, and this in turn necessitates an explanation of certain terms such as "State," "Government," "Sovereignty," and "Constitutional Law.” The definition of this last term will be found especially necessary in order that its American usage may be distinguished from that in the other countries of the world.

State and government distinguished

An aggregate of individuals living together and united by mutual social and economic interests is termed

a

Society. YA Society viewed as a politically organized group is termed a Body-Politic or State. The complexus of organs or agencies through which the State performs its functions are termed its Government. The persons who operate this political machinery are collectively known as

the Magistracy. The commands and directions issued by the State and enforced through its government by those in official authority are known as Laws. These laws are divisible into public and private, the former including as sub-classes, constitutional and international law. Political theorists and jurists are not agreed as to, whether, strictly speaking, the rules regulating the relations of States to one another should be termed laws. This, however, is a question which it is not necessary here to discuss.

Constitutionally viewed, the State appears as an entity or corporate person possessing the supreme legal will, or, as this supreme legal will is termed, the Sovereignty. The State is thus the ultimate source of law for all persons subject to its authority. These persons include all those who owe direct fealty or allegiance to the State, and known as citizens or subjects, as well as all citizens or subjects of other States, known as aliens, who are temporarily or permanently within the territorial limits of the State.

In every politically organized community entitled to be termed a State there exists, then, an authority to which, from the legal point of view, all interests are potentially subject. In the entire body of laws, public and private, as they exist at any one time, is stated the supreme will of the State so far as it has found expression. Because supreme, and the sole source of law, the only legal limits to this will are those which are self-set. These self-set limitations exist in the form of constitutional provisions determining the manner in which the State's sovereign will shall be expressed and enforced. In other words, these constitutional or fundamental provisions provide for the governmental organization of the State and delimit its powers.

The government, therefore, as distinguished from the State, exercises the sovereignty, but does not possess it. Instead of being itself the ultimate source of legal authority, its agents may legally exercise

only those powers recognized by existing constitutional law. Where, as in a State autocratically organized, few or no legal limitations upon the official authority of the autocrat or of his appointees and advisers exist, the government has, of course, practically uncontrolled legal power. In modern constitutional States, however, the governments are not only without legal authority with reference to many matters, but are obliged to exercise the authority which they do possess according to definitely determined modes of procedure. It is to be repeated, however, that the domain of the legal and political interests of the individual is simply that which, under existing laws, neither public nor private persons may legally enter. From the possible control of the State, however, through the enactment of new constitutional or statutory laws these liberties are not and cannot be exempt. Professor Burgess has put this very clearly when he says: “The individual is defended in this sphere against the government by the power that makes and maintains and can destroy the government; and by the same power, through the government, against any encroachments from any quarter. Against that power itself, however, he has no defence.”l

This characteristic of legal omnipotence thus predicated of the State is, of course, not to be construed as carrying with it an actual omnipotence of physical coercive power. The extent to which any given State, or, to speak more accurately, those who express and enforce its will, may control the actions of those subject to their authority is dependent upon manifold conditions of time and place, and especially upon the character and disposition of those to be coerced. All government, as Hume says, rests upon opinion. In every State the very existence of its government, the extent of its powers, and the manner of their

1 Political Science and Comparative Constitutional Law, I, 176.

exercise, is ultimately dependent upon the acquiescence of the people. This ultimate right of the people means, however, nothing more than that there is a limit to which political oppression and incompetence may safely go. fore this limit is reached—a limit which differs in different States according to the temper and enlightenment of their respective citizen bodies—there is abundant opportunity for grievous oppression and disastrous official incompetence. The fundamental problem of practical politics the world over is thus to secure a form of political organization which will ensure a wise administration of public affairs, and be sufficiently strong and independent to maintain itself against unwarranted attack, and yet be subjected to a control which will furnish a substantial guarantee that the people will not be oppressed. This is the problem of constitutional government, and of constitutional law.

The unity and indivisibility of sovereignty

In the paragraphs which have gone before it has been indicated that, legally viewed, the essential characteristic of a State is the possession by it of a supreme lawdetermining authority termed Sovereignty. This attribute connotes upon the one hand complete freedom of its possessor from the legal control of any other political authority whatsoever; and, upon the other hand, the right of absolute and exclusive jurisdiction over the legal rights and obligations of those subject to its authority, whether these be considered individually or as grouped into larger or smaller associations of men.

As thus expressing a supreme will sovereignty is necessarily a unity and indivisible. That there cannot be within the same political body two wills, each absolutely supreme, would seem to be sufficiently obvious, and, in fact, the contrary has not often been maintained in direct terms. It has, however, been widely asserted that the

Sr.

sphere of political authority may be divided into two or more distinct parts, and political organizations established in each which, within their respective fields, may be wholly independent of the control of one another. And this has pass been, and still is, often spoken of by the Supreme Court dir's of the United States, as well as by other tribunals

, as a ble division of sovereignty and as exemplified in the American

Luú constitutional system. The statement is, however, an erroneous one, and due to a confusion between the ideas her of State and Government, and to a failure to distinguish

for. between the possession of sovereignty by the State and the exercise by governmental agencies of powers delegated to them by this sovereign authority.

Though the sovereign will of a State may not be divided, it may find expression through several legislative mouthpieces, and the execution of its commands may be delegated to a variety of governmental agencies. Theoretically, indeed, a State may go to any extent in the delegation of the exercise of its powers, not only to governmental organs of its own creation but to those of other States. In the latter case the State to whose governmental organs the exercise of the powers in question has been delegated acts as the agent of the delegating State, which State retains the legal, if not the actual, power of withdrawing the grants of authority which it has made. Thus England concedes to certain of its colonies, as, for example, Canada and Australia, almost complete authority of government and yet its legal sovereignty over these possessions is in no wise diminished or divided. So, similarly, there have been many instances in which States have placed the administration of certain of their own districts in the hands of other Sovereignties, and in the numerous so-called Protectorates we have instances of weaker and less developed States surrendering the control of their foreign relations and, indeed, certain of their domestic affairs to foreign

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