It is sometimes asserted that sovereignty in the people exists as an original right, inhering as a necessary attribute, and this claim takes the form that the people have absolute, uncontrolled power and can constitutionally do anything. If this be true, then Blackstone was right, and absolute, uncontrolled, despotic power exists in this government. When a government, whatever the form, grants a constitution, it necessarily remains supreme over it (97). Constitutional amendments. When a constitution results from the agreement of equals, it is entirely consistent with their dignity that they obligate themselves to the observation of its provisions in reference to changes or modifications, and it is essential to its character as a constitution that it be the supreme rule of conduct for all persons under all circumstances (98). The doctrine of the inherent, absolute power of the people is in substance, though differing somewhat in form, that the right to adopt a constitution necessarily includes the right to abolish, reform and to alter any existing form of gov ernment; that this right exists as a right of sovereignty and is not derived from human authority, and may be and must be effected to such an extent and in such manner as the people may determine. It is now settled that such action is the exercise of revolutionary powers and not sovereignty (99), that the people of the United States can make no changes in the United States constitution except in the manner provided by that instrument for 97 Cooley's Const. Hist. Am. Law, 31. constitutional amendments (100), that the people of the United States are limited as to what changes (in form or substance) may be made by the provisions of the constitution (101), and that by the constitution the people divested themselves of the sovereign power of making changes in the fundamental law except by the method in the constitution agreed upon (102). That any attempt by the whole people, or by any majority of them, or any portion of them, to accomplish the same in any other mode, would be legally nugatory, unconstitutional and revolutionary, and that the people have expressly guarded themselves against the will of majorities and have rendered themselves incapable of destroying the autonomy of the states, by guaranteeing to each a republican form of government (103). 100 Luther v. Borden, 7 How. 1; State v. Hunt, 2 Hill (S. C.), 1; Wells v. Bain, 75 Pa. St. 39; Koehler et al. v. Hill, 60 Iowa, 568; State V. Young. 29 Minn. 509. 101 Iredell, J., in 2 Dall. 419. 102 Cooley's Prin. 23; Gibbons v. Ogden. 9 Wheat. 1. 103 See Amendment of State Constitutions. Constitution—Amendments to.-"The constitution is supreme over all of them, because the people who ratified it have made it so; consequently, anything which may be done unauthorized by it is unlawful. But it is not only over the departments of the government that the constitution is supreme. It is so, to the extent of its delegated powers over all who made themselve parties to it, states as well as persous, within those concessions of sovereign powers yeilded by the people of the states when they accepted the constitution in their conventions. Nor does its supremacy end there. It is supreme over the people of the United States, aggregately and in their separate sovereignties, because they have excluded themselves from any direct or immediate agency in making amendments to it, and have directed that amendments should be made representatively for them, by the congress of the United States, when two-thirds of both houses shall propose them, or where the legislatures of two-thirds of the several states shall call a convention for proposing amendments, which, in either case, become "A government," says Justice Miller, "which holds the lives and liberty and the property of its citizens subject at all times to the absolute disposition and unlimited control of even the most democratic depository of power is after all a despotism. It is true it is a despotism of the many, of the majority, if you chose to call it so, but it is none the less a despotism. It may be well doubted if a man is to hold all that he is accustomed to call his own, all in which he has placed his happiness, and the security of which is essential to that happiness, under the unlimited dominion of others, whether it is not wiser that this power should be exercised by one man than many. The theory of our government, state and national, is opposed to the deposit of unlimited power anywhere" (104). valid, to all intents and purposes, as a part of the constitution, when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths of them, as one or the other mode of ratification may be proposed by congress." Dodge v. Woolsey, 18 How. 331 (348). 104 Loan Ass'n v. Topeka, 20 Wall. 662. See In re Duncan, 139 U. S. 449-461. Downs v. Bidwell, 182 U. S. 244-358. CHAPTER IX. THE PEOPLE OF THE STATE. § 129. Identity of the people. Attention may now be directed to another entity possessing rights, powers and duties, namely, that other great person called a STATE, using the latter word in its familiar sense as designating a member of the national union. The individuals constituting a state have as such no political but only civil rights, except as an organized body, that is, except when acting by its recognized organs. The entire population of a state already constituted (that is, organized under a constitution), were it assembled on some vast plain, could not constitutionally pass a law or try an offender (1). States existed prior to the adoption of the constitution and still exist as component parts of the greater person -the United States. One of the provisions of the constitution, and one doubtless without which its adoption could not have been obtained, is the clause guaranteeing to each of the states a republican form of government. This clause in the constitution operates in a double way. It is a limitation upon the powers of the people and of the United States in favor of the people of the states, and se 1 Jameson, Const. Conv. 237. cures the preservation of the autonomy (2) of the states (3). § 130. States are essential constituents of the nation. It is also a limitation upon the powers of the majority of the people of a state in favor of each and every citizen thereof, insuring to the individual that the form of government of the state, as well as of the nation, shall be republican Doubtless it had its origin in the jealousy of the states of the danger of encroachment of the nation upon the powers of the states (4); but in actual operation, it justified the prediction that the encroachment would most likely come from the states (5). The reconstruction of the seceded states was largely based upon this provision (6). § 131. Position of the state as to independence. It was at first generally supposed that the sovereignty of the people of the states, even in the qualified sense as designating their independence and exemption from the juris 2 See Bouvier's Law Dict., tit. Autonomy. 3 Texas v. White, 7 Wall. 725. ""The people of each state compose a state, having its own government and endowed with all the functions essential to separate and independent existence,' and that 'without the states in union there could be no such political body as the United States.' Not only therefore, can there be no loss of separate and independent autonomy to the states through their union under the constitution, but it may be not unreasonably said that the preservation of the states and the maintenance of their governments are as much within the design and care of the constitution as the preservation of the Union and the maintenance of the national government. The constitution, in all its provisions, looks to an indestructible Union composed of indestructible states." Texas v. White, 7 Wall. 725. See Reconstruction. 4 Miller, Lect. on Const., 596. 5 Ibid. 6 Texas v. White, 7 Wall. 700; White v. Hart, 13 Wall. 646. The report of the Committee on Reconstruction treats the subdued seceding states as conquered persons having no rights. See Reconstruction. |