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may be conducted for the sake of humanity and policy as a war with a foreign power under all the rules of international law, but legally the government has to do only with a rebellion.'
$ 12. THE SECESSION OF A State is simply a fact, not a legal proceeding. As long as the people of the United States, whose work the constitution is, did not themselves decide to destroy this work, that is, the Union,- in other words, as long as they wished to continue to be one people,, the constitution of the Union, despite any fact whatever, remained from the standpoint of law wholly unchanged. On questions of this sort, single states have as little right of action as single individuals. An ordinance of secession is wholly null and void. Despite it, the state remains a member of the Union and its citizens remain citizens of the Union. Its and their duties under
1 In the Prize Cases (Black, II., 635), the supreme court says that the rebels were at the same time a war-making power and traitors, and were therefore subject to the consequences to be deduced from either the one or the other character. The United States, on the other hand, bore the double character of a war-making power and of the sovereign, and had therefore the rights of both.
It seems to me strange to refer the right to suppress a rebellion to the right to declare war, as the supreme court does in Texas vs. White (Wallace, VII., 700). The Philadelphia convention certainly had no thought of civil war when it gave this right to congress. I think, therefore, that it is at least an unfortunate formulization of the idea I have already recognized as just, when the supreme court declares in the Prize Cases just quoted that congress alone has the right to declare war. In the case of a civil war, according to my judgment, formed from the standpoint of constitutional law, the lawful government has nothing whatever to do with declaring war. A war is a fact which has simply to be recognized. If congress merely recognizes the fact, the views expressed in the text and by the supreme court come into harmony.
2 These fundamental principles are clearly and sharply formulated in Cohens vs. Virginia, Wheaton, VI., 264.
the constitution continue wholly unaltered. No new act of admission is necessary, therefore, in order to allow a state which has been in rebellion to enter again into the full enjoyment of its constitutional rights. It is again an equal member of the Union when it has been recognized as such by the political powers of the Union, and its representatives and senators have been admitted by congress.?
§ 13. RECONSTRUCTION. It was thus not a legal, but a political question, how the so-called reconstruction was to be accomplished. The courts had to decide, upon a given case, what the political powers of the federal government had determined in regard to that case, and had to base their judgment upon this determination; but it did not appertain to them to decide, in addition to this, what these political powers ought to have decided
These remarks have by no means exhausted the consequences which are to be deduced from the opening sentence of the constitution. It is only when this sentence is analyzed from exactly the opposite standpoint that its full influence upon the political nature of the Union is first recognized.
$ 14. THE UNITED STATES. The people of the United States name themselves as the possessors of sovereignty, and act throughout as such; so that they give to the United States the constitution. The people of the United States, however, is not exactly the same thing as the population of the North American republic. As the Union has never been a purely arbitrary and theoretical creation, so also the name United States is no arbitrary and casual phrase, but is due to the political facts of the
1 White vs. Cannon, Wallace, VI., 443; White vs. Hart, Ibid., XIII., 646.
? Texas vs. White, Wallace, VII., 700.
Union. The United States is not only the name of a thing, but the thing itself. As the population of the Union, in giving itself a constitution, acted not as one simple whole but in and through its organization into states, an organization historic and existing by law, so it did not by the constitution organize or wish to organize a close national state. It changed the federation of states, a federation with the loosest powers, into a federal state, upon a deep-laid, national foundation. Out of the federation there came an actual Union, but the Union was not divided into provinces, which were still called states. Its constituent members were actually states and must always remain states. It was a mistaken use of the word “sovereign ” (because it led to conclusions false from the standpoint of fact), if afterwards, as before, even in official utterances, men spoke of “sovereign" states; but the states had their own sphere of authority, and within this they were completely independent of the national government. The expression “ people of the United States," it has been well said, does not on account of this become a shadow, without legal existence or incomprehensible. The possibility of misusing the word “people” in a demagogic way always remains, and this possibility will always be made use of from time to time; but if one has an honest wish to receive and understand the word in its constitutional sense, then there is less room for doubts than there would be if the Union were a single state. The “people of the United States” are the . Schlief (p. 10) affirms that even the mob can identify itself with this “ we, the people of the United States.” This is not to be questioned, but the constitution cannot be made answerable therefor. In his view the introductory words are “evidently an imitation of the introductory formula commonly used up to the present day in the constitutional monarchies of Europe in passing a law: “We, king by the grace of God,'"- an assertion which is irreconcilable with
population of the United States, in the organization given them by the constitution and precisely fixed by it.? A condition precedent of this organization is the maintenance of their division into self-governing states. The states first came into existence with the Union and by means of it, but they are older than the constitution, and did not abandon their separate political existence by the adoption of the constitution, even if this gave them an essentially different character. If the states had no existence, from the standpoint of constitutional law, outside of the Union and independent of it, yet, on the other hand, the Union, from the same standpoint, had just as little an existence without the states. The supreme court says that “the constitution in all its provisions looks to an indestructible Union composed of indestructible states.” 2 The same authority declares in Cohens vs. Virginia: “ America has chosen to be in many respects and in regard to many purposes a nation, and for all these purposes her government is complete.” The court proceeds to explain, however, that America wished to be a nation only in certain respects and for certain aims, and in regard to all others the federal government is without any authority whatever; it is as little sovereign as the states.
even a superficial knowledge of the history of the development of the constitution. A constitution cannot be “critically developed from one underlying thought" (p. 6) if it is to be anything more than a worthless product of a doctrine of abstract logic. It is to be understood only from the historic standpoint. Schlief, for the most part, does not state, as he promises to do, what “the actual constitutional law of the Union ” is. Instead of this he states what, in his opinion, the constitutional law should be, frequently what it should not be. and only what it is in accordance with his erroneous view.
1 Story is therefore unquestionably wrong when he says (I., 249) that a majority of the whole people can unquestionably change the constitution at will. For in this case “people" seems to be used as synonymous with “population.” Judge Jameson (The Constitutional Convention, pp. 19, 20) neatly sums up the whole constitutional doctrine in the sentence: “Sovereignty resides in the society or body politic; in the corporate unit resulting from the organization of many into one, and not in the individuals constituting such unit, nor in any number of them, except as organized into a body politic and acting as such.” See also in the same work pp. 524-526.
? Texas vs. White.
$ 15. SOVEREIGNTY, which in fact is indivisible, rests only in the people of the United States. The people have intrusted the federal government with the use of certain rights, while others, according to their will, as fixed in the constitution, remain in the states,- others, but not all others. The ninth amendment reads: “The enumeration in the constitution of certain rights shall not be construed to deny or disparage others retained by the people.” This article is in direct connection with the preceding amendments which, as has been said, are ordinarily called the American Bill of Rights. Speaking generally, it rests upon the fundamental view that certain rights (among them those expressly named) belong to the people, i, e., in this case to the individual citizens, and that these rights are to be completely withdrawn from the cognizance of the political powers.' On this point the
1 While, by the first amendment, certain things were expressly withdrawn from the legislative authority of congress, congress is not named in the seven following amendments. Yet it has always been held by the courts that they relate only to the federal government and not to the state governments. But if the states, so far as the federal constitution is concerned, are in law perfectly free to act in regard to the matters to which the first eight amendments relate, yet the reason for these amendments was as a matter of fact the unanimous conviction of the population of all the states that these barriers must be erected against every government, if freedom was to be ensured. It is only in regard to some of the least important provisions that this is either untrue or true only in a limited degree. Farrar (pp. 59, 60) affirms that these rights are “held by every member of the nation, under and by virtue of the constitution of the United