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macy and supremacy, we do not now inquire; for its legitimacy and supremacy must be conceded, or else we must maintain that we have no legal order, and are subject to mere arbitrary will, which, whether the will of one, of the few, or of the inany, is the essence of despotism. But if the constitution is legitimate and supreme, the people collectively and individually are under it, bound to obey it, and have and can have no power, directly or indirectly, to alter its fundamental or essential character,--consequently, are bound to the best of their ability to preserve it substantially as it is. The constitution, or the instrument we call the constitution, contains, indeed, a clause providing for its own amendment; but the constitution can authorize amendments only in its own interest, such as tend to preserve its original type or idea, and to secure or facilitate its realization.

On this power to amend there is much loose and even wrong thinking among our politicians. When the civil society is once constituted, it is supreme, the political sovereignty vests in it, and there is and can be, in that society, no power over it. The powers of the convention called to amend the constitution, whatever their limit or extent, are derived from the civil society, and can be only such as it can delegate. It can delegate all the powers it possesses. saving its own existence and supremacy as civil society. It cannot part with its inherent sovereignty, nor dissolve itself. But civil society exists in its constitution. The constitution is the fundamental law of the state, that which constitutes civil society, or gives to society its entity as a political or civil individual. Suppose the constitution, you suppose civil society; take away the constitution, you destroy civil society. As the general has no existence without the particular, the constitution does not create civil society in general, but a particular civil society, and therefore must be itself a particular civil constitution. Hence the existence of any given political society depends always on its particular constitution. Any essential change of that constitution will, then, be the dissolution of that particular civil society. But, as nó civil society can authorize its own dissolution, it follows that the convention can have no power, under the authority to amend the constitution, to touch, in any degree whatever, any of its essential principles, and is limited to such amendments as are perfectly compatible with the preservation of its fundamental and substantial character.

We are treating here of conventions held under civil society in pursuance of a constitutional provision. If we suppose the people in the state of nature, and a convention for constituting civil society, a different principle, no doubt, holds. If it be a fact,—which, however, we do not admit, —that the French revolution of February, 1848, dissolved political France, annihilated the entire civil society, and reduced the French people to the state of nature, the national assembly which was convened, or which came together, had, no doubt, plenary powers, and was free to give to the French nation any civil constitution, within the law of nature, it deemed advisable. But the constitution decided upon, if legitimate, the moment it was established, became the supreme law of the land, sacred and inviolable. Civil society, civil France, was then reconstituted, and henceforth French sovereignty vests in this civil France, and all bodies henceforth convoked, ordinary or extraordinary, depend on it for their powers. Hence there is always a radical difference between a convention to constitute civil society and a convention under civil society to amend the constitution. The former holds under the law of nature, and has all powers which that law does not forbid; the latter holds under the constitution, and has no powers but those which it confers.

The modern doctrine of democratic politicians on this head, that sovereignty vests, not in the people as civil society, but in the people back of it, or prior to it, is unsound. Back of civil society, or anterior to it, in what is called the state of nature, the people have no normal existence; for civil society itself is coeval and coextensive with the human race. To ascend to its origin, you must ascend to the origin of man himself; for he is essentially social, and society is impossible, inconceivable even, without government of some sort. In point of fact, civility is as essential to the conception of the normal man as is sociality itself. The so-called state of nature, save as a metaphysical abstraction, if ever found, is abnormal, exceptional, not prior, as an actual fact, to civil society, but subsequent thereto. It is never prudent to follow the speculations of the political theorists of the last century, who in nearly all cases, to use a homely expression, placed the cart before the horse. That a people may lose civil society and lapse into what is called the state of nature—that is, be reduced to the natural law alone—is conceivable, may sometimes happen; and when so, they may, no doubt, come together in convention, and, if able, reconstitute civil society, reorganize the state, under any form they please, not repugnant to the law of nature ; not, however, in consequence of any inherent sovereignty vesting in them, not because they are the normal origin of all civil power, but from the necessity of the case,—the necessity of having civil government, and there being for them no other way of getting it. But rights founded in necessity cease with the necessity itself. The necessity ceases the moment the civil society or the state is reconstituted; consequently, from that moment ceases the right or sovereignty of the unconstituted people, or people back of civil society, under the simple law of nature. a

We cannot, therefore, accept the theory which places the convention assembled in pursuance of a constitutional provision on the same footing with the convention of the people prior to civil society, under the law of nature,-a theory which supposes the people antecedently to civil society inherently sovereign, and the source of all the legitimate powers of the state. This theory of popular sovereignty we eschew, because it is repugnant to the fundamental idea of government. Civility and sovereignty are identical, or, at worst, inseparable, and one cannot be without the other. Suppose sovereignty, you suppose the state; suppose the state, you suppose sovereignty. Suppose the people sovereign anterior to civil society, you suppose civil society anterior to civil society; that is, that the same thing can both be and not be at the same time! The people are sovereign, we grant; but as civil society, that is, as constituted, made a political person or individuality,—not the people as mere population, back of civil society and out of it, in which sense they never have a normal existence, and, where there is civil society, no existence at all.

The notion, therefore, that the clause authorizing a convention to amend the constitution is simply designed to establish an orderly or regular method of appealing to a power back of the constitution which originally made it, and therefore competent to unmake it, must be regarded as unsound; for no such power exists, or can be conceived. We cannot suppose such power to survive the constitution of civil society without denying civil society itself, by converting it into a mere voluntary association, and making law a mere voluntary agreement. No statesman, if at all worthy of the name, will for a moment confound the state with a volun

tary association. The state—what we mean by civil society -is something established (status), fixed, immovable; but nothing is established, fixed, immovable, that depends on volition. A voluntary association has no coercive power, and voluntary agreements in the absence of law may or may not be observed, at the option of the parties. Government cannot be founded in compact. If the people back of the constitution, that is, back of the civil society, are the source of power, they have the power to change the constitution at will,--to alter, enlarge, contract, or revoke the powers they delegate to civil society, as seems to them good. Grant that they have agreed that they will do it only according to certain formalities, these formalities they impose upon themselves, and nothing hinders them from throwing them off at will. They are responsible for their observance only to themselves, and if they choose to dispense themselves, who is wronged, who has a right to complain? If the people back of civil society are the origin of the state, the real, persisting sovereign, and if the state derives from them, Dorrism is true, and the late decision of the supreme court of the United States, condemnning it, is indefensible. But Dorrism is subversive of all political order, for it asserts the constant presence in the community of a power competent to disre. gard the existing authorities, to annul the constitution, and substitute another in its place at will.

The error lies in supposing that the powers of civil so. ciety are derived. The powers of civil society are inherent in it as civil society, and civil society itself is derived from no human source whatever; for its office is not to obey men, but to rule them, both individually and collectively. Nothing can be more absurd than to suppose it derives from the very multitude it is to govern. Government dependent on the governed is no government at all. Civil society derives from God, the source of all power (non est enim potestas niei a Deo), who immediately, as in the case of the Jews, mediately, by the operations of his providence, in other cases,-constitutes it, commissions it, defines its powers, and commands us to obey it for his sake. They are as miserable statesmen as Christians who preach political atheism, and suppose the state is conceivable with only a human basis. The nations, as well as the individuals, who forget God, shall be turned into hell. Neither the state nor the individual can withdraw from dependence on God, and live, “ for in him we live, and inove, and have our being."

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The true doctrine is, that, though the people are indeed sovereign, they are so only as civil society, in which the sovereignty, under God, inheres ; that is, the sovereignty vests in the civility, not in the popularity, and popularity must be civility, before the people are sovereign. Consequently the convention assembled in pursuance of a constitutional provision is not an appeal to a power or sovereignty back of the state, or civil society, but a body under the state, and subject to it. Then it has no power over the state. Then, since the state is in the constitution, begins and ends with it, it cannot alter or touch the essential character of the constitution, and the power to amend is necessarily restricted to amendments in the proper and legal sense of the term, as we have defined in the beginning. What we mean is, that a constitution once established is fixed in right for ever; and there is, under God, no power in the state or outside of it, that can alter it fundamentally, or change its essential principles. Our constitution is essentially republican, and federal republican, and can never be legally changed into a monarchy or into a consolidated republic. If in the written constitution there is a clause which appears to authorize such a change, it is nugatory, because repugnant to the organic constitution of the state.

We must always distinguish between the written constitution and the constitution of civil society,--what we call the organic constitution. This precedes the convention, and is its law. The written constitution presupposes it, but does not create it, or even modify it. All it does is to provide for the wise and just administration of government under it and in accordance with it. Our politicians err not in assuming a power back of the written instrument, but in assuming that power to be the people back of civil society, and therefore concluding that the convention is competent to alter the fundamental constitution of the state. So far as the written instrument marks or declares the civil constitution, it is unalterable; but so far as it merely provides for the administration of government in accordance with it, it is alterable, in the way and manner authorized by law.

Now it is clear to every man who has studied the subject at all, that the fundamental constitution of the American state, whether we speak of the Union, or of the several states, is not pure, simple democracy; and therefore any direct or indirect attempts to render it purely democratic

VOL. XVI-7

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