Struggle for National Government

The Constitution.

Popular sovereignty, then, is the basis of the American system. But it does not, as does the British system, choose its legislative body and leave unlimited powers to it. It makes its "Constitution" the permanent medium of its orders or prohibitions to all branches of the Federal Govern ment and to many branches of the State Governments : they must do what the Constitution directs and leave undone what it forbids. The people, therefore, are continually laying their commands on their governments ; and they have instituted a system of Federal courts to ensure obedience to their commands. A British court must obey the Act of parliament ; the American court is bound and sworn to obey the Constitution first, and the Act of Congress or of the State legislature only so far as it is warranted by the Constitution. But the American court does not deal directly with the act in question ; it deals with individ uals who have a suit before it. One of these individuals relies on an Act of Congress or of a State legislature ; the act thus comes before the court for examination ; and it supports the act or disregards it as "unconstitutional," or in violation of the Constitution. If the court is one of high rank, or one to which a decision may be appealed, as the U.S. Supreme Court, other courts follow the precedent, and the law falls to the ground.

The preamble states that "we, the people of the United States," establish and ordain the Constitution. Events have shown that it was the people of the whole United States that the Constitution, but the people of 1787 seem to have inclined to the belief that it was the people of each State for itself. This belief was never changed in the south ; and in 1861 the people of that section believed that the ordinances of secession were merely a repeal of the enacting clause by the power which had passed it, the people of the State. For an account of the form of Government established by the Constitution see UNITED STATES : Constitution and Government.

The Constitution's leading difference from the Confederation is that it gives the national government power over individuals. The Federal courts are the principal agents in securing this essen tial power ; without them, the Constitution might easily have been as dismal a failure as the Confederation. It has also been a most important agent in securing to the national government its su premacy over the States. From this point of view the most im portant provision of the Constitution is the grant of jurisdiction to Federal courts in cases involving the construction of the Con stitution or ,of laws or treaties made under it. The 25th section of the Judiciary Act of 1789 permitted any Supreme Court jus tice to grant a writ of error to a State court in a case in which the constitutionality of a Federal law or treaty had been denied, or in which a State law objected to as in violation of the Federal Constitution had been maintained. In such cases, the defeated

party had the right to carry the "Federal question" to the Fed eral courts. It was not until 1816 that the Federal courts under took to exercise this power; it raised a storm of opposition, but it was maintained, and has made the Constitution what it pro fessed to be—"the supreme law of the land." Sovereignty.—The system of the United States is almost the only national system, in active and successful operation, as to which the exact location of the sovereignty is still a mooted ques tion. The contention of the Calhoun school—that the separate States were sovereign before and after the adoption of the Con stitution, that the Union was purely voluntary, and that the whole people, or the people of all the other States, had no right to maintain or enforce the Union against any State—has been ended by the Civil War. But that did not decide the location of the sovereignty. The prevalent opinion is still that first formu lated by Madison : that the States were sovereign before 1789; that they then gave up a part of their sovereignty to the Federal Government ; that the Union and the Constitution were the work of the States, not of the whole people ; and that reserved powers are reserved to the people of the States, not to the whole people.

By whatever sovereignty the Constitution was framed and imposed, it was meant only as a scheme in outline, to be filled up afterwards, and from time to time, by legislation. The idea is most plainly carried out in the Federal judiciary : the Constitu tion only directs that there shall be a Supreme Court, and marks out the general jurisdiction of all the courts, leaving Congress, under the restriction of the President's veto power, to build up the system of courts. But the same idea is visible in every de partment, and it has carried the Constitution safely through a period which has radically altered every other civilized Govern ment. It has combined elasticity with the limitations necessary to make democratic government successful over a vast territory, having infinitely diverse interests, and needing, more than almost anything else, positive opportunities for sober second thought by the people. A sudden revolution of popular thought or feel ing is enough to change the House of Representatives from top to bottom; it must continue for several years before it can make a radical change in the Senate, and for years longer before it can carry this change through the judiciary, which holds for life ; and all these changes must take place before the full effects upon the laws or Constitution are accomplished. But minor changes are reached easily and naturally in the course of legislation.