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." The same authority declares in Cohens vs. Virginia: "America has chosen to be in many respects and in re

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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.

2 Texas vs. White.

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gard 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.

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

tenth amendment is conclusive.

It says: "The pow

ers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people." We are considering this tenth amendment here only in regard to the matter immediately before us. It is evident that among the rights which are neither given to the federal government nor reserved to the separate states is the weightiest of all; yes, the one which embraces all others, i. e., the right to change the constitution and to partition power in whatever way is desired, between the federal government and the states.2 The sovereign people

States, independent of any other earthly power, and, of course, cannot be destroyed or abridged by the laws of any particular state." There are numberless judicial decisions against this view, but, nevertheless, a state law which forbade the open carrying of arms has been declared unconstitutional.

1 Cooley, Principles, 29, says that whatever is not granted to the federal government belongs to the states, or to the people thereof. The expression "people" in the tenth amendment is generally understood in this way. In maintenance of this view, it is ordinarily said that here the phrase is used that powers are "reserved to" the states and the people, while the ninth amendment speaks of powers "retained by" the people. I do not overlook the weight of this reasoning, but yet cannot persuade myself that here only the people of the separate states are meant. According to the context, certainly another meaning is possible, and the great care with which the constitution has been drawn throughout suffices to show that the "thereof" which would have excluded every doubt would have been added if only the people of the separate states had been spoken of. Be this as it may, the views expressed in the text would not be influenced thereby, because they need not be made dependent upon the tenth amendment. Jameson (p. 86) is of the opinion that this amendment relates "not to the people of the states but to the people of the Union."

2 As long as the political nature of the United States is not subjected to a change which, in the essential sense of the word, is material, this can happen only by increasing, diminishing, or in some way

thus did not, in adopting the constitution, leave the stage, but they can at any instant use again, to the fullest extent, their sovereignty. But even so, only the sovereign people of the United States can do this. The population of the Union cannot. The least, as well as the most incisive and comprehensive, change can lawfully be made only in the way provided in the constitution, because the sovereign people has decided that it will make changes of the constitution only in these fixed ways. Naturally, it can change this decision as well as all others in a constitutional way.1 In the United States, therefore, sovereignty is actually, as the idea demands, unlimited and undivided, but the exercise of the rights of sovereignty is given to the organs of the commonwealth only in part.

fashioning differently the powers of the federal government. The supreme court says, in Sturgis vs. Crowninshield, Wheaton, IV., 122, that there was no reason for setting forth in the constitution the powers which remained in the states, and it would have been improper to do so, because these had their origin, not in the American people, but in the people of the separate states, and were no further affected by the adoption of the constitution than was involved by the provisions of the constitution. The constitution not only withdraws from the states certain rights in order to give them to the federal government, but it also forbids them to do certain things without authorizing the federal government to do them. But while it says what the federal government can and cannot do, it can only say what the states cannot do; and it expressly sets forth that certain rights are reserved to them. So far as their relations to the Union do not come into question, it cannot, however, direct them to do anything whatever. We shall discuss later whether and how far powers were taken from the states in order to give them to the federal government.

1 Only on one point can it be doubtful whether a constitutional change can be made without the consent of all 'the states. Article V., which relates to the amendment of the constitution, provides "that no state, without its consent, shall be deprived of its equal suffrage in the senate.” If a change in the constitution on this point

$ 16. THE AUTHORITY OF THE FEDERAL GOVERNMENT AND OF THE STATES. The authority of the federal government, as well as of the states, is a limited one, and the boundary between the two is set forth in the constitution. From the "nature of the state," from the 66 reason of the state," from "public opinion," from political policy, and even from necessity, the federal government can deduce no powers whatever.1 It has no inherent rights whatever. All its powers are delegated, and it has only the powers which are given it by the constitution. It is by no means necessary, however, that the delegation should be expressed in so many words. The provision of the articles of confederation on this point contains the word "expressly," and when the tenth amendment was discussed in congress, it was moved to incorporate this word in the constitution. Madison and others opposed it on the ground that general expressions must be used in the constitution, if it was not to descend into the most minute particulars. A stiff and literal interpretation of these clauses is not to be given, for the constitution was framed, not for the moment, and not in relation to one fixed state of facts, but with the idea of its

should be determined upon by a constitutional majority, and a state which did not consent should thereby be deprived of its equal representation in the senate, the danger against which the states were to be absolutely assured would be brought about in an indirect way.

1 The supreme court says that the constitution "is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances." The doctrine that it can be thrust on one side in order to meet the pressing necessities of a great crisis has the most destructive consequences. It "leads directly to anarchy or despotism, but the theory of necessity on which it is based is false; for the government, within the constitution, has all the powers granted to it which are necessary to preserve its existence." Ex parte Milligan, Wallace, IV., 120, 121.