them cannot, whether states or individuals, obtain justice through the courts. When the wrongs suffered are political in their origin, the remedies must be sought in a political way. Of course, they can frequently be obtained only indirectly, and can simply prevent further injustice. They cannot give satisfaction for the wrong already done. Yet it does not by any means follow from this that the sovereign states are authorized "to interpose," as the state's-rights school phrases it. In these cases the different factors of the federal government must themselves decide ultimately upon the extent of their constitutional powers. If each state had the right, so far as its interests were in question, to decide on such a point, the federal government would cease to be a government, and anarchy would become the supreme law of the Union. And so the argument that the president, and especially congress, if withdrawn from judicial control, can bend the constitution to their usurping wills, is of no avail. It is a fundamental principle, not only of politics, but of constitutional law, that the possibility of the misuse of a power is not a proof of the non-existence of the power.

1 So far as the supreme court is concerned, it is a significant fact that it can be appealed to only in certain cases specified in the constitution, but congress is to decide in which of these cases there shall be a right to appeal. In one case, in which the question of the constitutionality of the reconstruction laws could be raised only by an appeal, congress took away from the supreme court the right to take cognizance of the case, and this, too, after the appeal had already been taken. The reason for this was, of course, that congress thought it undesirable to have a decision of the supreme court. See McCardle's Case, Wallace, VII., 506.

ORGANIZATION OF THE FEDERAL GOVERNMENT.

$20. THE THREE DEPARTMENTS. The articles of confederation preserved the actual condition of affairs brought about by the Revolution, and entrusted the entire business of the federation to one single organ. On the other hand, the constitution established three departments. These together constitute the government. In spoken and written discussions of this change, Montesquieu's doctrine of the division of powers was mainly relied upon. But the type presented by the English constitution had already had much greater influence. Yet the lessons derived from the country's own sad experience were decisive. And therefore the authors of the constitution did not seek to copy the English pattern exactly. Much less did they pursue the principle they recognized with stubborn doctrinairism and short-sightedness to its logical consequences. The three governmental factors were congress, the president, and the supreme court. They were endowed with the legislative, executive and judicial powers. But while their respective jurisdictions are sufficiently defined as between themselves, these jurisdictions by no means completely coincide with these three forms of political action. They intersect each other in manifold ways, and often the authoritative will works its ends only by their co-operation. The three departments stand side by side, but are not, as is frequently asserted, independent of one another. This is so little the case that Pomeroy (p. 89) rightly says: "Each is so completely dependent on the others that without them it could do practically nothing." That this was so arranged with full intention appears from the Federalist (No. 48): "Unless these departments be so far connected and blended as to give to each a constitutional control over

the others, the degree of separation which the maxim requires as essential to a free government can never, in practice, be duly maintained." In the organization of the government each department was given a constitutional control of the other two. Hence there can be no superiority or inferiority among them. It is, moreover, a fundamental principle of the constitution that the three factors of government are in complete co-ordination,— co-ordinate, but not of equal power. In this respect the constitution put them on an entirely different footing, and the actual development of circumstances has very considerably increased this original difference. For that difference has its only source in the nature of things, i. e., in the nature of the functions with which they are entrusted. In. the political contests of the past-sometimes impliedly, sometimes expressly-congress has repeatedly claimed, and at least once the president' has claimed, a certain superior authority. Both rested the claim upon being in a higher degree than the other the representative of the "people," the source of all power. Of such a difference the constitution knows naught. Even though it existed, the co-ordination of the governmental factors would be absolutely untouched, as each of them indubitably possesses only the powers delegated to it by the constitution. Apart from this, moreover, the claim would be untenable, because the condition precedent of the argument in support of the claim does not exist. The people of the United States, as a unified, organized body, never appear in the arena of political action. Even where the people act most directly, they always do so through their state organizations. None of the factors of government is, therefore, called into life in such a way as to justify it in designating itself as a direct representative

1 Andrew Jackson.

of the people. There could be no claim of an order of rank among them, even if it were permitted to deduce the constitutional law of the land from "the democratic principle." In spite of the great role which appeals to "the democratic principle" have played in the constitutional history of the United States, there is not the least doubt of its absolute inapplicability, for these appeals substitute for the constitution this principle, or what is declared to be a consequence thereof. The sovereign people have made unto themselves the constitution as their supreme law. They have therein merely assigned a fixed place to each of the three factors of government, without regarding it as necessary either to the public dignity or interests to admeasure its respective authority in proportion to the participation of the people — the voters in its organization. Had that been the intention of the authors of the constitution, they would not, on the one hand, have given that factor (the supreme court), to which its final interpretation as a rule belongs, the greatest possible stability, and, on the other, have withheld from the "people" every immediate influence upon the formation of this factor.

§ 21. THE TERM OF OFFICE. Just as the provision that the members of the supreme court shall be appointed by the president with the consent of the senate for life or during good behavior disregards "the democratic principle," so all the other provisions relating to the terms of office of the other possessors of the powers of government depend solely upon the demands of public policy. The president is elected for four years, and enters upon the duties of his office on the 4th day of March. Relative to eligibility for re-election, the constitution says nothing. A single re-election has frequently occurred, but a reelected president has never even been renominated by

2

his party, much less actually re-elected, for a third term.' The suggestion often made, to abolish the right of reelection, has thus far found so little approbation among the people that it has been somewhat vigorously agitated only during a few presidential campaigns. The vicepresident is elected simultaneously with the president and for the same period of time. Congress consists of the house of representatives and of the senate. The members of the house of representatives are elected for two years. Their terms all end on every second 4th of March. Only in cases of vacancies does the governor of the state concerned order a special election to fill the vacancy (art. I., sec. 2, § 4). This term of office is absolutely mandatory for the whole house. A dissolution of congress is not recognized by the constitution. The term of the house of representatives constitutes a legislative period and is the basis of political chronology. The count is by "congresses," and each new house of representatives brings a new "congress" into existence. The presidential term of office covers two legislative periods. The senators are elected by the different state legislatures for the term of six years. If a vacancy occurs, the governor of the state concerned is authorized to fill it provisionally by appointment, if the legislature is not in session at the time (art. I., sec. 3, § 2). After the legislature is again in session, a new election of a senator takes place, not for a term of six years, but only for the unexpired part of the term. This is because the senate is not subject to an

3

1 A portion of the republican party made very energetic but ultimately fruitless efforts in 1880 to break through this tradition in favor of General Grant.

2 Vacancies occur through death, resignation, expulsion, and acceptance of an office incompatible with that of congressman.

3 The governor is not authorized to make the appointment if the vacancy has not yet actually occurred, but is only prospective.