In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice; and this principle has been applied, by the act of Congress, to the sovereign States of the Union.[330]
If the President errs, it is within the power of Congress to apply the proper remedy. “The sovereignty in every State resides in the people of that State, and they may alter and change their form of government at their own pleasure.”[331] But the United States guarantees to each a republican form of government.[332] “No particular government is designated as republican, neither is the exact form to be guaranteed in any manner especially designated.”[333]
The guarantee necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all, the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term, as employed in the Constitution.[334]
Conformably with the character of this federal guarantee of the republican form, the Supreme Court has decided that:
In the Constitution the term State most frequently expresses the combined idea ... of people, territory, and government. A State, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common Constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and States, which compose it, one people and one country.... The preservation of the States, and the maintenance of their government, 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 of its provisions, looks to an indestructible Union of indestructible States.[335]
The constitutional rules of State comity are therefore rules of national jurisdiction, and operate as limitations on the jurisdiction of the several States. The purpose of these rules, as that of every rule of that jurisdiction is essentially to preserve that jurisdiction, or sovereignty,—and is sufficiently indicated in the Preamble to the Constitution.[336]
128. The admission of a new State into the Union is a political act exclusively within the power of Congress, save that no new State shall be erected within the jurisdiction, or by the conjunction, of States or parts of States, without the consent of the Legislatures of the States concerned, as well as of Congress.[337] This entire act is exclusively political, but the State once admitted into the Union comes within the jurisdiction of the United States as the Constitution provides.[338] The State thus admitted becomes entitled to and possesses all rights of sovereignty and dominion,—that is, rights of jurisdiction, which belonged to the original States.[339]
129. The act enabling the inhabitants of a Territory to adopt a constitution and become a State in the Union usually prescribes that the proposed constitution and government shall be republican in form, shall make no distinction in civil or political rights on account of race or color, shall not be repugnant to the Constitution of the United States, or to the principles of the Declaration of Independence, and shall comply with such conditions as Congress at the time may propose.[340] On June 16, 1906, Congress passed an enabling act under which, four years later, Arizona sought admission into the Union. The new constitution submitted to Congress provided for state-wide recall of State officials. To this provision Congress objected and made the admission of the Territory conditional upon the amendment of its proposed constitution by eliminating the objectionable provision. Arizona complied with the congressional condition and was admitted; thereupon speedily amended its constitution by re-inserting the objectionable clauses. Congress has no power to impose conditions, clauses, or provisions upon the constitution of a State; yet, a provision of a State constitution in conflict with the Constitution of the United States is null and void.[341]
130. As the Union is an indestructible Union of indestructible States, it is a principle of American constitutional law: once a State, always a State. The inhabitants of a Territory having been erected by Congress into inhabitants of a State, territorial jurisdiction, created by act of Congress ceases, and State jurisdiction exists. It is this State jurisdiction in the Union which is indestructible, which can neither be extended, nor diminished by Congress. The equality and equivalency of the States in the Union is a fundamental in American constitutional law. The jurisdiction of a Territory differs from that of a State as a governed differs from a self-governing community.
131. Congress has power “to make all needful rules and regulations respecting the territory and other property belonging to the United States.”[342] This means the power to govern, a power necessary to sovereignty, and the “inevitable consequence of the right to acquire territory; or, as the jurisdiction over a Territory does not belong to any State in the Union, its government lies by implication (if not by necessity) with the United States.”[343]