§ 13]

Federal Constitution.

33

remaining two states when they finally ratified it in the prescribed form.

It is apparent from what has been said as to the method of adopting the federal constitution that it was not a league or a compact among several independent sovereign states, but, on the contrary, a government resting for its authority on the assent of the people of the different states expressed by ratification in conventions of delegates selected by the people. It differed from the government under the Articles of Confederation, therefore, primarily in the source of its authority, and secondarily in the nature of the government authorized, as indicated by the powers delegated to it. This difference is well expressed in the preamble, which is in the following words: "We, the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this constitution for the United States of America.”

Although the people acted in the different states separately, there is no reason now to question the general proposition that the federal government rests on the authority of the people as a whole, and not on the authority of the states individually. As to the form of government provided, it is significant that its powers are to be exercised with reference to its citizens as individuals, rather than with reference to the states as communities. The revenues of the government are to be raised by taxes on persons and property, not by contributions from the states; the salaries of senators and representatives are to be paid by the United States, and not by the states from which they are chosen; and in general the powers of the government are to be exercised by the making of laws, the enforcement of which is entrusted to a president and a judicial department.

14. Methods of Constitutional Amendment.

Written constitutions usually contain provisions for their own. amendment. In the federal constitution it is provided (Art. V) that amendments shall be proposed by Congress, two-thirds of each house concurring, which shall become effective as parts of the constitution when ratified by the legislatures of, or by constitutional conventions in, three-fourths of the several states; or, on the application of the legislatures of two-thirds of the several states, Congress is directed to call a convention for proposing amendments to the constitution, which amendments shall go into effect when approved by conventions in threefourths of the states; but no state without its consent can be deprived of its equal representation in the Senate. All the amendments to the federal constitution thus far made have been proposed by Congress and ratified by the legislatures of the requisite number of states, the result of the action of the states being declared by the executive department.

The methods provided for amendment of state constitutions are by no means uniform. In some states amendment by the legislature has been recognized, but the usual method is for the legislature to submit the proposed amendment to the qualified electors for approval. Whatever the method provided, it must be strictly followed, and no amendment not proposed and adopted in the method prescribed becomes a part of the constitution; and it is for the courts to determine, when such a question is properly brought before them, whether the amendment has been legally adopted. No matter how general may have been the popular approval of a proposed amendment, if the required steps have not been taken, it does not become a part of the constitution. While a constitution may become effective by general acquiescence, a government provided for by such a constitution, not adopted in accordance with previously prescribed methods, is in its origin revolutionary and not regular, and a constitution which has gone into effect as the fundamental law can be regularly changed only in accordance with its provisions. A state cannot by constitu

§ 14]

Methods of Amendment.

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tional amendment violate the provisions of the federal constitution, so far as they impose restrictions on the exercise of state power, any more than it can do so by statute. Nor can it by amendment provide for any other than a republican form of government, for the United States is bound to guarantee that form of government to every state in the union (Const. Art. IV, § 4).

CHAPTER III.

NATURE OF THE FEDERAL AND STATE GOVERNMENTS; THEIR RELATIONS.

15. References.

NATURE OF STATE AND FEDERAL GOVERNMENTS: A. B. Hart, Actual Government (Am. Citizen Series), ch. vi; T. M. Cooley, Constitutional Limitations, ch. viii; J. Kent, Commentaries on American Law, Lec. xviii ; J. I. C. Hare, Constitutional Law, Lecs. vi, vii; H. C. Black, Constitutional Law, ch. ii; J. N. Pomeroy, Constitutional Law, §§ 85-120; J. Bryce, American Commonwealth, I, chs. iv, xxvii, xxviii, xxxvi, xxxvii; J. F. Jameson, Essays in Constitutional History: J. Wilson, Lectures on Jurisprudence (Andrew's ed.), I, ch. xi; II, ch. i; Lane v. Oregon (1868, 7 Wall. 71; McClain's Cases, 40).

RULE OF CONSTRUCTION; LIBERAL INTERPRETATION; IMPLIED POWERS: J. Story, Constitution, §§ 397–456; J. Kent, Commentaries, I, ** 243-254; McCulloch v. Maryland (1819, 4 Wheaton, 316; 4 Curtis' Decisions, 415; Thayer's Cases, 271; McClain's Cases, 1).

SUPREMACY OF THE FEDERAL GOVERNMENT: J. Story, Constitution, §§ 373-396; Martin v. Hunter's Lessee (1816, 1 Wheaton, 304; 3 Curtis, Decisions, 562; Thayer's Cases, 123; McClain's Cases, 746); Tarble's Case (1871, 13 Wallace, 397; Thayer's Cases, 2298; McClain's Cases, 43); Tennessee v. Davis (1879, 100 U. S. 257; Thayer's Cases, 316; McClain's Cases, 51); Ex parte Siebold (1879, 100 U. S. 371; McClain's Cases, 56; Thayer's Cases, 326) ; In re Nagle (1889, 135 U. S. 1 ; McClain's Cases, 65; Thayer's Cases, 335); In re Debs (1895, 158 U. S. 564); Hauenstein v. Lynham (1879, 100 U. S. 483; McClain's Cases, 72); Davis v. Elmira Savings Bank (1895, 161 U. S. 275; McClain's Cases, 76).

LIMITATIONS IN the Federal Constitution: J. I. C. Hare, Constitutional Law, Lect. xxiv; J. R. Tucker, Constitution, ch. xiv; H. C. Black, Constitutional Law, ch. iii; The Federalist, Nos. 83, 84; H. V. Ames, Amendments to the Constitution; E. McClain, Federal Protection against State Power (Harv. Law Rev. VI, 405); Barron v. Baltimore (1833, 7 Peters, 243; 10 Curtis' Decisions, 464; McClain's Cases, 14; Thayer's Cases, 449); Maxwell v. Dow (1900, 176 U. S. 581); Territory of Hawaii v. Mankichi (1903, 190 U. S. 197; 23 Sup. Court Reporter, 787); Dorr v. United States (1904, 24 Sup. Court Reporter, 808); Slaughter-House

§ 16]

Division of Powers.

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Cases (1872, 16 Wallace, 36; McClain's Cases, 18; Thayer's Cases, 516); United States v. Cruikshank (1875, 92 U. S. 542; McClain's Cases, 31); Civil Rights Cases (1883, 109 U. S. 3; Thayer's Cases, 554; McClain's Cases, 37); Hurtado v. California (1884, 110 U. S. 516; McClain's Cases, 905; Thayer's Cases, 616).

16. Division of Powers.

The first state constitutions were adopted at a time when there was no established federal government, so that all the powers of government, so far as their exercise was in any way provided for, were distributed among the three departments of the state governments, and this form of constitution has been substantially followed to the present time in the amendment of former constitutions or the making of new ones. But when the people, through their proper representatives, adopted the federal constitution, they thereby restricted the authority of the state government, so far as powers which had theretofore existed in the state governments were conferred upon the federal government. The power of any branch of a state government consists, therefore, of the general power conferred upon that department by the state constitution, subject to the limitations found in the state constitution itself; and subject also to the implied limitation arising out of the creation and existence of a federal government with the powers delegated to it. But on the other hand the state government does not derive its authority in any way from the federal government, nor are the departments of the state government in any way divisions or subordinate agencies of the corresponding departments of the federal government. The two governments rest upon the same general authority. There is a division of powers of government, therefore, between the state and federal governments, which division was effectuated by the adoption of the federal constitution, creating a national government which should exercise the authority conferred upon it by that instrument. We have then in the United States a curious and original example of divided sovereignty, which results in many theoretical and some practical difficulties in the determination of the respective powers of the state and federal governments. Any apparent