A written constitution adopted by popular vote affords, perhaps, some of the nicest tests of theory. Here we have the most specific form of popular assent. In such a document the powers of the government are explicitly set forth and specifically lodged; and the means by which they may be differently constituted or bestowed are definitively determined. Now we know that these documents are the result of experience, the outcome of a contest of forces, the fruits of struggle. Nations have taken knowledge of despotism. They have seen authority abused and have refused to submit; have perceived justice to be arbitrary and hidden away in secret tribunals, and have insisted that it be made uniform and open; have seen ministers chosen from among favorites, and have demanded that they be taken from among representatives of the people; have found legislation regardful of classes, and have clamored to have laws made by men selected without regard to class; have felt obedience irksome because government was disordered in form and confused in respect of responsibility, and have insisted that responsibility be fixed and forms of order and publicity observed. Sometimes only a steady practice has accomplished all this; sometimes documentary securities have been demanded. These documentary securities are written constitutions.
It is easy, as it is also impressive, to believe that a written constitution proceeds from the people, and constitutes their sovereign behest concerning government. But of course it does not. It proceeds always either from some ordinary or from some extraordinary organ of the state; its provisions are the fruit of the debated determinations of a comparatively small deliberative body, acting usually under some form of legal commission. It is accepted as a whole and without discrimination by the diffused, undeliberative body of voters.
What confuses our view is the fact that these formal documentary statements of the kinds and degrees of obedience to which the people assent, the methods of power to which they submit, the sort of responsibility upon which they insist, have become, from the very necessity of their nature, a distinct and superior sort of precise and positive law. We seek the sovereign who utters them. But they are not the utterances of a sovereign. They are the covenants of a community. Time out of mind communities have made covenants with their sovereigns. When despotism in France was ‘tempered by epigram,’ the sharp tongues of the wits spoke, after a sort, the constitution of the country,—a positive law whose sanction was ridicule. But the wits were not sovereign; the salons did not conduct government. Our written constitutions are only very formal statements of the standards to which the people, upon whom government depends for support, will hold those who exercise the sovereign power.
I do not, of course, deny the power of the people. Ultimately they condition the action of those who govern; and it is salutary that it should be so. It is wise also, if it be not indispensable, that the extent and manner of their control should be explicitly set forth and definitively agreed upon in documents of unmistakable tenor. I say simply that such control is no new thing. It is only the precise formulation of it that is new.
If it seem to be after all a question of words, a little closer scrutiny will disclose the fact that it is much more than that. Mr. Ritchie, of Oxford University, in an able article on “The Conception of Sovereignty,” contributed to the Annals of the American Academy of Political and Social Science (January, 1891), perceiving some part of the distinction that I have pointed out, and wishing to realize it in his thought, proposes to distinguish three several kinds of sovereigns: viz. a nominal sovereign—the English queen, for example; a legal sovereign—the law-making body; and a political sovereign—the voters, whom we might call the sovereign of appeal. But why not confine ourselves to substantives, if we may, and avoid the quicksands of adjectives? Sovereignty is something quite definite; so also is power; so also is control. Sovereignty is the highest political power in the state, lodged in active organs, for the purposes of governing. Sovereign power is a positive thing; control a negative thing. Power belongs to government, is lodged in organs of initiative; control belongs to the community, is lodged with the voters. To call these two things by the same name is simply to impoverish language by making one word serve for a variety of meanings.
It is never easy to point out in our complex modern governments the exact organs in which sovereignty is lodged. On the whole, however, it is always safe to ascribe sovereignty to the highest originative or law-making body of the state,—the body by whose determinations both the tasks to be carried out by the Administration and the rules to be applied by the courts are fixed and warranted. Even where the courts utter authoritative interpretations of what we call the fundamental law—the law that is embodied in constitutions—they are rather the organs through which the limitations of sovereignty are determined than organs of sovereignty itself. They declare the principles of that higher, constituent law which is set above sovereignty, which expresses the restrictions set about the exercise of sovereign authority. Such restrictions exist in all states, but they are given definite formulation only in some. As for the Executive, that is the agent, not the organ, of sovereignty.
But, even if it be comparatively easy thus to fix upon the organs of sovereignty in a unitary state, what shall we say of a federal state? How apply our analysis to that? One is tempted to declare, with Dr. Merkel, of Strassburg, that federal states give direct contradiction of fact to prevailing theories respecting the necessity for unity of power, indivisibility of sovereignty. Here, as he says, we have organs and authorities in possession of powers exclusively their own, for the furtherance of functions necessary to the ends of the state as a whole, existing side by side with organs also in full possession of powers exclusively their own, for the furtherance of the local and special functions of the member states. We know, moreover, that these two sets of organs are in fact co-ordinate; that the powers of the states were not derived from the federal authority, were even antecedent to the powers of the federal government, and historically quite independent of them. And yet no one who ponders either the life or the formal structure of a federal state can fail to perceive that there is, after all, an essential unity in it, the virtual creation of a central sovereignty. The constituent act—the manner in which the government was created—can, I conceive, have nothing to do with our analysis in this matter. The way in which the federal state came into existence is immaterial to the question of sovereignty within it after it has been created. Originative life and action, the characteristic attributes of sovereignty, come after that. Character and choice are postponed to birth, sovereignty to the creation of the body politic. The constituent act creates a thing capable of exercising sovereignty. After the creative law has done its part, by whatever process, then the functions of independent life begin. Thereafter, in all federal states, even the amendment of the fundamental law becomes an organic act, depending, practically without exception, upon the initiative of the chief originative organ of the federal state. Confederations are here out of the question. They are, of course, associations of sovereigns. In the federal state self-determination with respect to their law as a whole has been lost by the member states. They cannot extend, they cannot even determine, their own powers conclusively without appeal to the federal authorities. They are unquestionably subject to a political superior. They are fused, subordinated, dominated. Though they do not exercise their powers by virtue of delegation, though their powers are indeed inherent and in a very important sense independent, they are yet inferior to a body whose own powers are in reality self-determined, however much that self-determination may be hedged about and clogged by the forms of the fundamental federal law. They are still states, because their powers are original and inherent, not derivative; because their political rights are not also legal duties; and because they can apply to their commands the full imperative sanctions of law. But their sphere is limited by the presiding and sovereign powers of a state superordinated to them, the extent of whose authority is determined, under constitutional forms and guarantees, by itself. They have dominion; but it has sovereignty. For with the federal state lie the highest powers of originative legal determination, the ultimate authority to warrant change and sanction jurisdiction.
Our thought is embarrassed throughout such an analysis by the very fact which invalidates the Austinian conception and makes a fresh analysis necessary. Very little law literally originates in command, though its formulation and enforcement must unquestionably be effected through the commanding authorities of the state. It is their function to direct, to lead, rather than to command. They originate forms, but they do not discover principles. In a very profound sense law proceeds from the community. It is the result of its undeliberate as well as of its deliberate developments, of its struggles, class against class, interest against interest, and of its compromises and adjustments of opinion. It follows, slowly, its ethical judgments, more promptly its material necessities. But law issues thus from the body of the community only in vague and inchoate form. It must be taken out of the sphere of voluntary and uncertain action and made precise and invariable. It becomes positive law by receiving definition and being backed by an active and recognized power within the state. The sovereign organ of a state is, therefore, very properly said to be its law-making organ. It transmutes selected tendencies into stiff and urgent rules. It exercises a sovereign choice in so doing. It determines which tendencies shall be accepted, which checked and denied efficacy. It forms the purposes of the state, avoiding revolution if it form them wisely and with a true insight. This is sovereignty:—to sit at the helm and steer, marking out such free courses for the stanch craft as wind and weather will permit. This is the only sort of sovereignty that can be exercised in human affairs. But the pilot is sovereign, and not the weather.
IV
CHARACTER OF DEMOCRACY IN THE UNITED STATES
Everything apprises us of the fact that we are not the same nation now that we were when the government was formed. In looking back to that time, the impression is inevitable that we started with sundry wrong ideas about ourselves. We deemed ourselves rank democrats, whereas we were in fact only progressive Englishmen. Turn the leaves of that sage manual of constitutional interpretation and advocacy, the Federalist, and note the perverse tendency of its writers to refer to Greece and Rome for precedents,—that Greece and Rome which haunted all our earlier and even some of our more mature years. Recall, too, that familiar story of Daniel Webster which tells of his coming home exhausted from an interview with the first President-elect Harrison, whose Secretary of State he was to be, and explaining that he had been obliged in the course of the conference, which concerned the inaugural address about to be delivered, to kill nine Roman consuls whom it had been the intention of the good conqueror of Tippecanoe publicly to take into office with him. The truth is that we long imagined ourselves related in some unexplained way to all ancient republicans. Strangely enough, too, we at the same time accepted the quite incompatible theory that we were related also to the French philosophical radicals. We claimed kinship with democrats everywhere,—with all democrats. We can now scarcely realize the atmosphere of such thoughts. We are no longer wont to refer to the ancients or to the French for sanction of what we do. We have had abundant experience of our own by which to reckon.