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in whom alone resides sovereign power also wield that power directly, they can only be self-restrained in its exercise : no law can be imposed upon the acts of a sovereign. In fact, the recognition of a fundamental limitive law has ordinarily resulted in the selection of a body, more or less numerous, which represents the people. But, as we have seen, the action of this body cannot imply a participation by it, as such representative body, in the sovereign power. The true import of this form of organization is, that the exercise of certain rights of sovereignty – legislation or administration, or both — is subordinated to the assent of these representatives.
$ 12. Political Law, as thus described, is finally divided into General, which presents the theory of the state in general; and Special, which confines itself to the constitution of a particular state. In the same manner, the science of Jurisprudence itself, of which Political Law is a part, is separated into General, which treats of positive law in the abstract ; and Special, which is occupied with the entire municipal law of some determinate nation.
$ 13. The object of the present work is the investigation of Political Law in one of its special forms, that of our own country, - the Constitution of the United States of America. As the People of the United States, the possessors of sovereign power, have arranged their governmental relations by intrusting the management of a portion to the central national government, and another portion to the governments of the respective states, an exhaustive treatment of the subject would require that I should separately examine not only the Constitution of the United States, but also that of each state. Thus only should we ascertain the entire scope of those juridical relations which subsist between the whole people and their
1 Austin is certainly correct in his proposition that the sovereign cannot be compelled by law; his error is in determining who is the sovereign. Were bis positions true, the result would be inevitable that, in the United States, there was absolutely no sovereign; for all classes of rulers, national and state, are limited by precepts which have all the attributes of positive law; and if the people, in whose name these commands are assumed to be attered, be not the sovereign, we have none. Indeed, Austin seems pracsically to be driven to this conclusion.
government. But this method of treatment cannot conveniently be pursued. I shall confine myself to the Constitution of the United States as a unit, and shall refer to the state constitutions so far only as they may be implicated with the national government. I shall inquire within what sphere the state governments may legitimately act, but farther than this cannot go. What action has been taken by the inhabitants of a particular commonwealth must be ascertained by the student of local law.
14. The plan adopted for the present work does not require, nor even permit, me to enter at large into the field of General Political Law. Any extended inquiry into the nature of the state and of government in the abstract, into the advantages or disadvantages of particular forms, or even into the merits or demerits of special portions of our own Constitution, would be out of place, and will not be attempted. This work is not intended to be a treatise on civil polity. But the investigation of our established order, and the interpretation of doubtful clanses in the organic law, will require some reference to these more general topics. So far as may be necessary for these purposes, and as incidental to the general design, such reference will therefore be made. There are invaluable treatises upon General Political Law, to which the student may be referred ; and it seems both unnecessary and inexpedient to combine the two methods of discussion - the abstract and the special - in a single work, any farther than may be useful for explanation and illustration,
But there is another and stronger reason why arguments to convince us of the suitableness or unsuitableness of the whole plan, or of any essential feature of it, are unnecessary. The nation has passed the point in its history when any other scheme could be possible. The general form of our government, and all of its important elements, are fixed. They were deliberately and finally chosen after a discussion which surpassed in fulness and ability any other that had ever been presented to a people as an aid to their decision. Before the adoption of the Constitution, such a scrutiny was indispensable. An appeal was made to the fundamental principles of
government; the merits of various grants and limitations of power, and of various forms of organization, were carefully canvassed. The question presented was, Why should we, the People of the United States, choose this proposed scheme of government ? The publications of the day, and especially the collection of letters known as the Federalist, contain an answer to this inquiry. But now this Constitution is fixed; no one thinks of substituting in its place any new or different form of government; no one suggests any fundamental, or even important, change in its detail. By it the nation must stand or fall. The citizen knows its excellencies and its weaknesses, its capacities and its omissions. Such as it is, it must continue to be our organic law.
This Constitution being thus accepted as a fact, and universally regarded as substantially permanent, neither the educated citizen nor the professional student needs to ask, with much solicitude, whether any particular clause is better or worse than some other which might have been incorporated in the instrument; he needs to inquire what is the meaning of this clause, and what powers does it confer or limit, and how does it affect the relations between the government and the members of the body politic. All the aids which the canons of verbal interpretation, or history, or analogies with other forms, or ethics, can contribute to the correct determination of this all-important question, may be freely used; indeed, an answer is often impossible without a resort to some or all of them. There can be no doubt that the People are strongly convinced of the excellency of their organic law; that they will not yield their convictions to the demands of any theorizers; and that they will suffer no amendments except those which shall more completely carry out the ideas upon which the whole is based, which shall supply some omission, or correct some inadvertency. I repeat, the Constitution as a whole must stand. I believe that nothing but external violence can overturn it; no voluntary act of the people will displace that accustomed order which has proved to them so beneficent.
§ 15. Leaving, therefore, the branch of General Political Law, the general ideas of government and of Civil Polity, to
other writers, I shall confine myself substantially to the Constitution of the United States as it stands; to the complicated organization of political agents to whom the management of the government is confided; to the capacities, incapacities, rights, powers, and duties which have been conferred upon those agents; to the questions which have arisen and have been settled ; and to those which have been discussed, but have not yet been put to 'rest. Or, to quote the language of Falck, I propose to answer, in respect to the United States, the three questions: In what hands has the exercise of the sovereign power been placed ? To what law has this exercise been subjected ? By what means and combinations has the observance of this law been assured ?
16. How must such a design be accomplished ? In what method and by what materials must such a purpose be carried out? The Constitution of the United States is peculiar; no other one has existed in times past, or exists now, resembling it. The manner, form, and means of its study and exposition must therefore be very different from those which would be employed in treating of the Political Law of any other nation. The Constitution of England is unwritten and traditional; it has grown up by a historical development, and the historical element must enter largely into its discussion. The Constitution of France is written and formal, so far as the mere organization of the departments of government is concerned; but, in respect to the law which limits those departments, it is vague and indeterminate. And so, if we should examine the organic law of all the European nations, even when that law is written, none would be found which resembles our own.
The Constitution of the United States is peculiar in that it is all written ; that it has nothing of tradition. The government and the people go to the instrument itself as the embodiment of all granted functions; the past is resorted to only for explanation and interpretation of the written word. It is, indeed, in all respects, a statute, a statute of vast and solemn import, enacted in the name of the people, and accepted by them as the basis of all other legislation, and therefore infinitely transcending all in importance and compulsive force ;
but it is none the less a statute, - an expression of legislative will in a written form.
The Constitution is peculiar in that, while it is full and extends over a wide field, and contains a large amount of detail, and expresses in a written form all the powers that are con ferred upon the government, it is nevertheless not complete and exhaustive. It does not range through the entire extent of governmental action. Conferring powers of a high national character, and absolutely supreme. as far as they are granted, it withdraws a very large portion of governmental powers from the agents which it establishes, and thereby causes the juridical relations between these agents and the people, in respect to the matters thus withdrawn, to be a mere negation. In short, the Constitution is a written code creating functions perfect as far as they go; but the code is partial, not complete; in respect to much which occupies the attention of European governments, it is silent.
The Constitution is peculiar in that this written scheme not only organizes and constitutes the various departments of government, but defines and limits with care and precision all the capacities with which they are clothed. It establishes a law for them which is the formal and authoritative utterance, in a written form, of the will of the people, who possess sovereign power; and it provides efficient means for assuring the observance of that law.
Finally, the Constitution is peculiar in that it furnishes a method by which the people, in a legal and constitutional manner, may partially or wholly change the form and character of their government; obviating the necessity of revolutionary measures in case the plan adopted should fail of accomplishing the high purpose for which it was designed.
§ 17. In discussing, therefore, the powers, capacities, incapacities, rights, and duties of the governmental agents, all appeals to general ideas of civil polity, all references to the analogies of other forms and other nations from whom we may
be supposed to have drawn some of our methods, all purely historical deductions, are and must be constantly restrained and limited by the letter itself of the written instrument. On the