the United States considered simply as a corporate unit, or only as discriminated into the subordinate groups, known as States, the problem seems to be of easy solution.

Judging by the regular exercise of sovereign powers in the United States, that is, by the Constitution of government now established, sovereignty would seem, as a practical power, to reside in the people, as discriminated into the groups known as States. Of the numerous circumstances indicating this I shall mention but two. The first is, that by the Constitution of 1788 the electoral function for the Union is performed, not by the electors acting as a single body, under regulations established by the legislature of the Union, the total result to be determined by a simple majority of all the votes cast, but by the electors discriminated into groups conterminous with the States, voting in accordance with State laws, the total result to be determined by grouping the several State majorities, sometimes giving them a weight proportionate to their respective numbers, and sometimes an equal weight, without regard to their numbers.

The second circumstance is, that by the same Constitution, the power, par excellence a sovereign power, of amending that instrument, instead of being confided to the people or to a Convention of the people of the Union, acting directly, as a sovereign unit, is given to them acting indirectly, either through Congress, or through a national Convention, called by Congress at the instance of the State legislatures, and that, by way of rec ommendation merely, such action to be followed, in either case, by the ratification of the State legislatures or of Conventions called in the several States, as Congress may have determined. Thus the States seem to be inextricably interwoven with the machinery provided for the exercise of the most fundamental right of sovereignty, that of forming the organic law. But it is to be noted that it is with the regular exercise of that power that they are thus interwoven. The American nation, by which that system was established, can undo the work of 1788, if not in pursuance of its own provisions, then irregularly, being still, as before the formation of the Constitution, a sovereign political unit, the product of vital forces which had been active and accumulating long before it deemed it expedient to form that instrument. Although, in a moment of weakness, it saw fit to curtail its own powers, in

relation especially to the sovereign act of amending the Con. titution, still, if in fact the nation should outgrow the system thus established, and should by a general movement institute a change which should not only violate the provisions of that in. strument, in reference to State equality in the Senate, but abolish the States entirely, it would be within its actual competence as a sovereign body so to do, though, from a constitutional point of view, it would be, perhaps, a revolutionary act. The point, in a word, to be kept in mind, is, that the present Constitution, determining the exercise of sovereign power by the servants of the sovereign, is not a finality for any body but those servants,→→→ certainly not for the people of the United States, however they may have fettered themselves by the fundamental act of 1788. As the Constitution, as an organic growth, develops with the growth of the nation, the Constitution, as an instrument of evidence of that growth, must develop correspondingly. If by its terms it cannot do so, shall the nation be bound by it? In law, yes. As a matter of practical statesmanship, no.

§ 58. Assuming, then, that by the present Constitution of the United States, sovereignty, so far as relates to its regular exercise, inheres in the people of the United States, as discrim inated into groups by States, a word is necessary as to the CAPACITY in which those groups act in performing the function indicated, when proceeding regularly.

We have seen in a former section that the States partici. pate in the act of amending the fundamental law in a double capacity: first, as State governments the State legislatures applying to Congress to call a Convention for proposing amendments, or ratifying such as have been proposed; and, secondly, as subordinate peoples, together composing the people of the United States, as, in case of Conventions meeting in the several States to ratify proposed amendments. In this last case, however, the two capacities would be blended, as the call of such Conventions would probably issue from the respective State legislatures, and not from Congress.

The same distinctions run through the whole Constitution. Thus a large part of the legislative, and a corresponding part of the executive and judicial functions required in the United

1 See the concluding part of Article V. of the Constitution, relating to equality of representation of States in the United States Senate.

1

States, have been committed by the sovereign body of the Union the nation, to the States, as governments organized in subordination to the Union; I refer to the powers of local legislation and administration, sometimes erroneously regarded as belonging originally, and as of sovereign right, to the States. Properly considered, these are a branch of the sovereign powers of the Nation, of which, by the present Constitution, the exercise has been delegated to the State governments.

In like manner, the State governments are charged with the exercise of sovereign powers, with reference to the Union, in the election of senators through the State legislatures;1 in the issuance of writs of election to fill vacancies in Congress, by the State executives;2 in the appointment of officers for the national militia, given in general terms "to the States;" and in giving their consent to the building of forts and arsenals, and the erection of new States, by Congress, within the jurisdiction of existing States.

On the other hand, in several particulars contained in the Constitution, the States, as subordinate peoples, without immediate reference to their organization into State governments, have been charged with the exercise of sovereign powers for the Union; as in choosing the President of the United States, through electors chosen by such peoples directly, and in electing the members of the national House of Representatives, a duty committed to "the people of the several States." 5

§ 59. In all these cases, however, the circumstance already mentioned is to be noted, that the States, considered either as parts of the national people or as State governments, in no case act in either of those capacities purely and simply; the framers of the Constitution seeming carefully to have connected the exercise of sovereign powers by them in one capacity with their exercise of them in the other capacity, as if to make them, as parts of the national people, checks upon themselves when acting as State governments. Without stopping to cite instances 1 Art. I. sec. 3, cl. 1, Const. U. S.

2 Art. I. sec. 2, cl. 4, Const. U. S.

3 Art. I. sec. 8, cl. 17, and Art. IV. sec. 3, cl. 1, Const. U. S.

4 Art. II. sec. 1, Const. U. S.

5 Art. I. sec. 2, cl. 1, Const. U. S. On the whole subject discussed in the foregoing sections, see Federalist, No. 39.

of this system of internal checks, I observe that the States, in both capacities, are, by the Constitution, subjected to checks in the form of direct prohibitions emanating from a source external to themselves as States, being limitations upon their exercise of sovereign powers, imposed by the people of the United States.1 Admitting, then, that the powers of sovereignty, under the present Constitution, are exercisible only by the people as discriminated into States, and, as such, acting in the two capacities of State peoples and State governments, the fact that such limitations have been imposed is a further and an incontestable proof that the States are not themselves in any capacity, either separate or united, the sovereign power in the Union, but only the depositaries for the time being of such sovereign powers as the sovereign has chosen to have exercised.

§ 60. The theory, nevertheless, that sovereignty inheres in the people of the United States, not simply, or as a political unit, but as discriminated into States, has the sanction of high authority. Although I believe this to be an error, arising from not distinguishing the sovereign body from the system of functionaries in whom is temporarily vested by the sovereign the exercise of sovereign powers, I shall give extracts from the writings of one or two publicists who hold the view indicated.

Mr. John Austin, in his work, "The Province of Jurisprudence Determined," contrasting what he calls supreme federal governments with permanent confederacies of supreme governments, says of the government of the United States:

"The supreme government of the United States of America agrees (I believe) with the foregoing general description of a supreme federal government. I believe that the common government, consisting of the Congress and the President of the United States, is merely a subject minister of the United States governments. I believe that none of the latter is properly sovereign or supreme, even in the state or political society of which it is the immediate chief. And lastly, I believe that the sovereignty of each of the states, and also of the larger state arising from the Federal Union, resides in the states' governments, as forming one aggregate body; meaning by a state's government, not its ordinary legislature, but the body of its citizens which appoints its ordinary legislature, and which, the Union apart, is 1 See Art. I. secs. 8, 9, and 10, Const. U. S.

properly sovereign therein. If the several immediate chiefs of the several United States were respectively single individuals, or were respectively narrow oligarchies, the sovereignty of each of the states, and also of the larger state arising from the Federal Union, would reside in those several individuals, or would reside in those several oligarchies, as forming a collective whole." 1

There is, perhaps, some ambiguity in this passage, as it is not clear whether, by the body of the citizens of a State "which appoints its ordinary legislature," the author means the totality of its citizens, forming a corporate unit, which, "the union apart," virtually appoints the legislature, or the body of the electors, which immediately and formally appoints it. If the former was intended, his theory was clearly what I have supposed above; if the latter, it was the wholly untenable one, that sovereignty in the United States inheres in the electors or voting people of the respective States, considered "as forming a collective whole," - a theory which has the sanction of so eminent an authority as Mr. Hurd.2

§ 61. A similar view of the mode in which sovereignty inheres in the people of the United States has been lately propounded by Mr. Brownson, with his characteristic force and ingenuity, in his work, "The American Republic." Having located political sovereignty, in general, in the people, "not individually, but collectively, as civil and political society," he proceeds to determine how it exists in the people of the United States. Commenting upon the opening words of the preamble of the Federal Constitution, "We, the people of the United States," he says: "Who are this people? How are they constituted, or what the mode and conditions of their political existence? Are they the people of the States severally? No; for they call themselves the people of the United States. Are they a national people, really existing outside and independently of their organization into distinct and mutually independent States? No; for they define themselves to be the people of the United States. If they had considered themselves existing as States only, they would have said, 'We, the States; and if independently of State 1 John Austin, The Province of Jurisprudence Determined, Vol. I. p. 222. 2 Hurd, Law of Freedom and Bondage, Vol. I. § 343, note 2; The Theory of National Existence, pp. 127, 144, and 147.