sovereignty. That is, the paramount sovereign would either continue absolute or would cease. It has never been denied that the nation is sovereign.

§ 83. UNDIVIDED NATIONAL SOVEREIGNTY SECURES THE RIGHT OF POLITICAL ASSOCIATION. It follows that there can be no combination in a political sense existing under that sovereign which would have for effect to weaken the force of the sovereignty from which it derives its existence and validity. There is no allegiance other than to the nation. Whatever association individual members of the nation may form cannot compete with the paramount sovereign in any way. With this limitation, the right to associate is absolute. In other words, under the law of sovereignty, men may associate for whatever lawful purpose. They may associate for political purposes, and herein we find that these associations have the lawful powers consented to by the members. In this sense the United States is not different from the States, cities, or whatever association.' The only difference is one of numbers, for to the general government all have consented. The question of sovereignty, then, resolves itself into the very common right, that of self-government, a right not peculiar to a State or to a nation, but characteristic of all the self-directing sentient members of the human family. Upon any theory of our national existence, we must, therefore, premise the sovereignty of the nation. Nor can any theory destroy the direct relation between it and the individual, unless it be that of the State as subject. This theory is also untenable, for whether the State be considered an

1 See Webster, Works, Vol. VI, p. 121, argument in United States Bank v. Primrose, 13 Pet. 519.

administrative division, a conventional congeries of people, or a historical survival of popular grouping, the fact is that the State is composed of people whose affairs it administers, and that the allegiance of every one of these people is to the nation which protects them in the exercise within the States of their inalienable rights. The people are sovereign through the nation and it through them.

Thus whether the State is the body through which the people act to support the nation, one of the purposes for which the State acts, is to perform what other functions are confided to it by the people as principals. As the people are the principals in the one case, so they are in the other. The people of the States may change their form of self-government in any manner not inconsistent with the law of the supreme government and not in limitation of the rights of the individuals. If it were otherwise there would be no self-government and the national government would fall, its control of its members being divided among the States. This was what the seceders attempted, but it is to be noticed that the ground was that the national government did not protect the rights of citizens in other States, and upon that ground they were theoretically justified.

§ 84. THE SUPREMACY OF LAW AND THE JUDICIARY. Common sense as applied to the Constitution admits of only one conception of our national existence, namely, that "We, the People of the United States," who were one people as a fact when they first ordained and established this Constitution for the United States of America," are one people with one sovereign and one law. This was the notion of

the framers and the result of their political philosophy. That body of English Whig doctrines culminating in Locke's political philosophy was the basis of the political theories of the colonies. The people are the source of the law, and in our system of government it is impossible to reverse the order and place the State above the source of the law. Nor can the government of one State be properly called the source of any law. Professor Dicey says:

"Federalism, lastly, means legalism - the predominancy of the judiciary in the Constitution - the prevalence of a spirit of legality among the people.'

"3

He adds with reference to the United States.

"No separate legislature throughout the land is more than a subordinate law-making body, capable in strictness of enacting nothing but by-laws; the powers of the executive are again limited by the Constitution; the interpreters of the Constitution are the Judges. The Bench, therefore, can and must determine the limits of the authority both of the government and of the legislature; its

1 Andrew C. McLaughlin, Social Compact and Constitutional Construction, Am. Hist. Review, Vol. V, 467.

"The States ought to be placed as much under control of the general government, at least as much as they formerly were under the King and British Parliament." Madison, Yates' Minutes, Vol. I, Elliot's Debates, 461, Jameson, Const. Conventions, sec. 49.

In the case of Luther v. Borden (1849, 7 How. 1), it was held that the Constitution had vested the power of recognizing a State government in Congress; that it was therefore a political not a judicial question. See Texas v. White, 7 Wall. 700; Taylor and Marshall v. Beckham, 178 U. S. 548; McCulloch v. Maryland, 4 Wheat. 316; Lane County v. Oregon, 7 Wall. 71; Ex parte Siebold, 100 U. S. 371; The Three Friends, 166 U. S. 1; U. S. v. Palmer, 3 Wheat. 634; Foster v. Neilson, 2 Pet. 317.

The Law of the Constitution, 4th ed. p. 164.

decision is without appeal; the consequence follows that the Bench of Judges is not only the guardian but also the master of the Constitution."

To what, then, can the judges of the States refer, beyond the Constitution of the State and the Constitution of the United States, but the common law of the land? The courts of the United States may construe the Constitution only where the matter is capable of presenting a case in law or in equity, but those provisions of the Constitution which they may apply sum up the whole common law. And as the constitution of no State can change either the Constitution or the laws of the United States, and as the legislature of the State cannot change the common law of the State, the source of the common law being in the people and the law being wider than any State, there seems to be no legal basis for distinction between the common law of a State and the common law of the United States. To say that the source of law is the people, is to deny arbitrary power; to charge the application of law to any branch of government, is to declare, as was declared by our ancestors, the supremacy of law, that government is of laws, not of men. This they did by restricting political power by constitutional expression of common law safeguards and by confiding the law as distinct from politics to the judiciary.1

"The supremacy of the judiciary, whether it exists under a federal or under a unitary constitution, finds its ultimate logical foundation in the conception of law as distinguished from the possession and exercise of govern

1 See end of Declaration of Rights of Massachusetts; Thayer, Cases on Constitutional Law, Vol. I, p. 25; Harrington, Oceana (published in 1656), Works, 3d ed., 155, 158.

mental power. If governmental power is in any case unlimited, the exercise of it is not subject to any law, and it is therefore impossible that the judiciary, in such circumstances, should have any authority to declare any exercise of it invalid. But if governmental power is in any case limited by a law proceeding from a source superior in political power to the organ by which such limited power is exercised, the constant and immediate supremacy of that law cannot be maintained without the existence of a separate tribunal which has authority to declare the content of that law whenever an appeal is made to it to do so in exercise of its proper functions. The courts of law in England have not hesitated to declare acts of the Crown, legislative and executive, invalid, because they were contrary to law, and the Crown is under the law. The law in many of those cases was unwritten, but it was none the less definite law; and the authority of the courts to declare it, maintained its supremacy so long as it continued to exist. If, under a written constitution, the powers of the legislative organ of the government are defined and limited, the supremacy of the law which defines and limits those powers cannot be regularly and constantly maintained against attempted infringements of it by the legislature, if there is not a separate tribunal invested with authority to declare that law at the appeal of any person who claims the protection of it. The conception of the supremacy of the law above the possession and exercise of governmental power is the peculiar achievement and inheritance of the English-speaking race. But before any conception or ideal of the social or political relations of men can produce practical results, it must be embodied in one or more social or political institutions; and in the supremacy of the judiciary the conception of the supremacy of the law has found its appropriate and beneficial application to the legal and political relations of the individual to the state."1 1 A. Inglis Clark, Harvard Law Review, October, 1903, Vol. XVII,