Chapter 11

Constitutional law, By John Randolph Tucker

Source of Sovereignty and Power

Page 57 section 52,

S,52, We have hereforeto established as legitimate results of practical political science that it is best and safest to clothe the representative Body-politic with the sovereignty vested in the real Body-politic, and with authority to change the old and construct a new civil polity, that sovereignty being limited, as has been indicated previously, so as to secure the rights and liberty of the individual man, and not to trench upon his inalienable and indefeasible rights, which are not rightful within the sovereignty of the Body-politic. As we have seen this representative Body-politic, called by Aristotle (Greek Words) -- the mass of suffragans, -- and in a country where suffrage is moderately restricted or universal, this de facto or representative Body-politic may be regarded as a federation of families, each chief of which casts the vote of the family,-- that is, we find in this a return to the patria potestas of primitive society in this representative Body-politic. As the de jure Body-politic is in theory the rightful sovereignty and principal, and government but its agent, this representative or de facto Body-politic in practice must be taken to be that sovereign power which creates government by making a constitution for it, delegating its powers, and distributing them between departments at its pleasure. The authority of this Body-politic may be regarded as the combined powers of all the individuals composing it, vested in each by its Creator to enable them, in social union with secured liberty of self-use, to do their several duties to him. In the language of Blutnschli, "Each (man) is at the same time member of the sovereign and subject to the sovereign." The organic force of society -- the government -- must be so

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considered, it powers so defined and limited, and its machinery so arranged as to conserve the rights and liberty of the man and to promote the social welfare of the whole. This enormous machine must ex necessitcte be wielded by human hands and guided by human beings, in whom the selfish principle always threatens injustice and wrong to the subject of its power. Upon governments, therefore, wisdom and experience dictate there should be such restraints as to their possible usurpation and abuse of power, as well as such definition and limit to the liberty they are Divinely ordained to secure. The device by which these important objects may be obtained we call a constitution (con and sto, to stand together).

God has not ordained any form of government, though he has ordained government itself, thus providentially indicating that the form which the constitution shall give to government is left to the sagacity of each people to fit and adapt to its condition. The form fitted for one people may properly be very different from that which should be adopted for another.

What society must secure to the man is the maximum of social liberty to each, consistent with the like liberty to all others. He must be left as free as possible, so that his freedom shall not detract from the equal social liberty of his fellows. It follows from this, that where man is controlled by moral force within him, which makes him respect the social liberty of others, government in so far is not needed to control him; but where he is licentious and not self-governed, government is needed to curb his action, which he will not himself restrain.

For if we suppose the sum of force needful for the control of any man to be fixed, it will consist of two factors: the internal and external. The internal, or moral, force is that which he himself exercises in directing his action; the external force is that which the government must exercise

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where self-control is not sufficient properly to regulate his action. As man rises in the scale of moral intelligence, he becomes the better able in freedom to control himself. As he falls in that scale, his capability of proper free use decreases and external control is needed properly to regulate his conduct. When, therefore, the moral force becomes equal to the entire force needful for his control, governmental force may be zero; but when the moral force is zero, the governmental force must be all. This may be well illustrated by the formula: F = M + G; where F represents the total force needed for control, M the moral force, and G the external force. This formula shows that where M is equal to F, G may be nothing; but where M is zero, G must equal the entire force. From the above we deduce the following maxim: Give to man the maximum of liberty and to government the minimum of power consistent with conservation of social peace and order.

The degree of liberty for which peoples are fitted is therefore very different, and liberty is a prize which God holds out as a reward of moral elevation, because it alone can make the highest liberty consistent with the social order of the people. Free institutions are therefore the achievements of a people through a civilization in which personal self-control makes freedom possible without imperiling social order.

Barbarians cannot hold free institutions when given to them, because the forces essential to maintain social order over savage natures would destroy freedom. The supremacy of moral force in the heart of the individual man is essential to his freedom over the external control of government. If man will control himself by self-government, he may be free; if he will not, government must limit his freedom by such power as is needed to keep him in order.

To sum up: God ordains society for man and ordains government for society, and leaves to man's wisdom his noblest function, the construction of a constitution for the government. As society is ordained for man-right, and government is ordained for social order, so the constitution must

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be ordained to control government in order that it may protect individuals and preserve society. A constitution may be defined as any ordination by the Body-politic which constructs the government for the state and prescribes and defines its powers. It may be institutional, an outgrowth which the Body-politic constitutes the government and delegates and limits its powers. The Body-politic holds the sovereignty and gives powers to government. The Body-politic is creator: the government its creature: the government its creature; the Body-politic is master: government its servant; the Body-politic is a band of cestui que trustent for which government is trustee; the Body-politic is the de jure sovereign: there representative Body-politic is the de facto sovereign. the government, as agent, derives all the authority it has, for it has no original authority, directly from the real Body-politic, though indirectly from the representative Body-politic. The Body-politic is sovereignty with original powers; government is not sovereignty, for it has no original powers, but only those derived from its sovereign. The Body-politic is the primary "powers that be ordained of God" to create and control government, which is only the secondary "powers that be ordained of God."

S 53. Sovereignty is the essence of power from which flow emanations of powers. Sovereignty is the dynamo -- the motor force in all civilized polity. Its emanations in the exercise of powers by its agents are distinct from it -- do not decrease it, but leave it in its normal status. We must not confuse this essence of power with its emanations. Sovereignty, as absence, is one, indivisible, ungrantable, undistributable and always reserved; governmental powers, as emanations of this essence, may be granted, distributed, divided or reserved. This important distinction between sovereignty and governmental powers-- the one as the essence, the other as emanations therefrom -- will not find recognition in British writers

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prior to the seventeenth century, or in such as Blackstone in the last century. Thus Blackstone says: "By the sovereign power . . . is meant the making of laws." This doctrine is equivalent to the English maxim that the British Parliament is omnipotent; but a learned commentator, while denying this dogma of Blachstone, has held, in distinct language, that the legislative essence which constitutes sovereignty, where, and where only, that legislative essence which constitutes sovereignty can be found. The same commentator adds: "The power which every independent state of nation . . . possesses in relation to its own immediate concerns is unlimited, and unlimitable, so long as the nation or state retains its independence; there being no power upon earth, whilst that remains, which can control or direct the operations, or will, of the state in those respects. This unlimitable power is that supreme, irresistible, absolute, uncontrollable authority, which by political writers in general is denominated the sovereignty; andwhich is by most of them suppose to be vested in the government or administrative authority of the state, but which, we contend, resides only in the people, is inherent in them and unalienalbe from them."

"Power in the people is like light in the sun, native, original, inherent, and unlimited by anything human. In government it may be compared to the reflected light of the moon, for it is only borrowed, delegated and limited by the intention of the people, whose it is, and to whom governors are to consider themselves as responsible, while the people are responsible only to God'; themselves being the losers, if they pursue a false scheme of politics."

That the ultimate supreme power is in the people is also the doctrine of the Locke. The same doctrines are announced in the Bills of Rights of Virginia, Massachusetts, and the

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others of the original states of our Union. This may be regarded as specially American doctrine, very little comprehended by any of the European writers. Even Bluntschli, in quoting Washington's farewell address, in which he says: The basis of our political systems "is the right of the people to make and alter their constitutions of government," seems to take but a confused idea of it while he admits it. Later English writers, many on the continent, while in the main conceding the truth of the doctrine, do not seem to understand it in the mode in which it has been already set forth.

Mr. Justice Matthews, in the case of Yick Wo v. Hopkins, states the doctrine clearly thus: "Sovereignty itself is, of course, not subject to law, for it is the author and source of law; but in our system, while sovereign powers are delegated to the agencies of the government, sovereignty itself remains with the people, by whom and for whom all government exists and acts."

It follows from this relation between the Body-politic in its constitution-making power and the government in the ordinary exercise of political powers -- the first holding original authority, and the latter only derivative -- that when government exercises powers which the constitution allows, its action has the full force of the sovereign will; but when the government does what the constitution does not allow, the action of the government is ultra vires and void. This is the great American discovery in political science. It may be stated thus, as a political axiom in America, that the constitution is supreme and paramount to all acts of all departments of government; and that any such act repugnant to, or inconsistent with, the constitution is null and void, and by the court shall be held of no force or effect. The supremacy of the constitution-making power over all acts of government, whether legislative, judicial or executive, lies at the foundation of our political law, and is, in its full force, the great American discovery in the science of government.

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The authority to make constitutions is in the Body-politic. The Body-politic utters its sovereign will through the constitution which calls government into being, organizes its functions, defines and limits its powers, and declares to this, its creature, by its creative fiat, "Thus far shalt thou go, but no farther." this principle rejects wholly the idea that any government is Divinely entitled to servile obedience, or to any obedience where it violates the law of its creation or sets at naught the charter of its authority. An aristocracy or democracy which obeys not a constitution, under which it derives and exercises power, so far from having claim to be jus divinum or supreme as the "powers that be," is a usurper of the fundamental authroity of the people, which is the true jus divinum, because it has primary and fundamental powers that are ordained of God. The author of Paradise Lost, in his memorable defense of the people of England, has vindicated the doctrine thus stated, which has become an axiom in American politics. This doctrine may be found germinal hinted at in the writings of Aristotle and though the translations of the great Greek philosopher somewhat differ, yet it seems to be well defined by him that there is and should be permanent and paramount laws, the supremacy of which there is no power to oppose.

In Magna Carta, June 15, 1215, page 61, the paramount authority of this great charter is expressed in these terms:

"Et nos nihil impetrabimus ab aliquo, per nos nec per alium, per quod aliqual istarum concessionum et libertatum revocetur vel minuatur; et, si aliquid tale impetratum fuerit, irritum sit et inane et numquam eo utemur per nos nec per alium."

The practical inefficiency of this declaration of the Great Charter, owing to the dogma of the omnipotence of Parliament, made the declaration rather abstract than practical; but in some early cases of the Courts of the States, notably in Hawkins, v. Kamper, in Virginia, and in other cases in other states, the doctrine was judicially estavlishe in its application to the paramount authority of state constitutions.

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But in the great case of Marbury v. Madison, the doctrine is stated with so much clearness and force by Chief Justice Marshall, speaking for the Supreme Court, that a full citation of the language of that decision may properly here be made:

"That the people have an original right to establish, for their future government, such principles as, in their opinion, shalll most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designated to be permanent.

"This original and supreme will organizes the government, and assigns to different departments their respective powers It may either stop here, or establish certain limits not to be transcended by those departments.

"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between governments with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

"Between these alternative there is no middle ground. The constitution is either a superior paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it.

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"If the former part of the alternative be true, then a legislative act contrary to the constitution is not law; if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

"Certainly all those who have framed written constitutions contemplate them as forming the fundamental and paramount law of the nation, and, consequently, the theory of every such government must be, that an act of the legislature, repugnant to the constitution, is void.

"This theory is essentially attached to a written constitution, and is consequently to be considered, by this court, as one of the fundamental principals of our society. It is not, therefore, to be lost sight of in the further consideration of this subject.

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"If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be seen, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

"So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

"If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply.

"those, then, who controvert the principles that the constitution is to be considered, in the court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law

" This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet in practice completely obligatory. It would declare that if the legislature shall do what is expressly forbidden , such act, notwithstanding the express prohibition, is in reality effectual ..It would be giving to the legislature a practical and real omnipotence , with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits and declaring that those limits may be passed at pleasure.

"That it thus reduces to nothing what we have deemed the greatest improvement on political institutions, a written constitution, would of itself be sufficient in America, where written constitutions have been viewed with so much reverence , for rejecting the construction . But the peculiar expression of the constitution of the United States furnish additional arguments in favor of its rejection

sec; 54

This principle , the supremacy of the Body-politic as constitution maker and the subordination of the government as the delegated agent of the Body-politic , with no powers but those derived from the Body-politic by virtue of the constitution, is therefore the foundation of America constitutional law. All acts of every department of government within the constitutional bounds of power , are valid; all beyond bounds are "irritum et inane" ---null and void. Government, therefore, has no inherent authority, but only such as is delegated to it by its sovereign principal. Government may transcend the limits of this authority, but its acts is none the less void. It can not by usurpation, jurally enlarge its powers , nor by construction stretch them beyond the prescribed limits

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The idea that usurpation or necessity or a supposed extension as a consequence of customs or progress of society can make jural any powers not constitutionally conferred is contrary to the American political science, fatal to the liberties of the people, and is only a wicked pretext for the violation of sworn obligations. Such an idea would really mean this---- that persistent usurpation of power by a government, acting under the prescribed limitations of a written constitution, could amend and change, which by its terms can only be amended and changed by the Body-Politic with only delegated powers. It would make the government a self-creator of its own powers, instead of instead of of the creation of the Body-Politic with only delegated powers. It would take sovereignty from the people and vest it in their government; and transfer all political authority by flagrant usurpation from the Body-Politic to the omnipotent Government Written constitutions would be destroyed, and the self usurped omnipotent of irresponsible government would be erected upon their ruins.

Sec 55, The constitution may be written, or institutional and unwritten.. A Body-Politic by institutional methods may organize government and define the limits of its authority .. Thus, customs and precedence have great authority, and these without reference to any written instrument whatever.. In England its constitution is largely a structure founded on precedence and customs, and yet there are great papers to which reference is always made as of great and permanent authority.. Thus the Magna-Carta, as we have seen, confirmed in many reign, has been the free embodiment of free institutions, a departure from which meets public condemnation, and whose vary terms, as we have shown, make whatsoever is contrary thereto void and of none effect In the reign of Charles 1.. The petition of rights by the house of commons, sanctioned by the King , was quasi-constitutional compact between the King and the people as to the true line between prerogative and popular power and in 1688 the declaration of rights presented to the prince and princess of orange

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Became, by the act of 1 William and Mary , the embodiment of the principals upon which constitutional monarchy ever since have been founded.. For this reason Mr. Gladstone has well said "The British constitution is the most subile organism which has proceeded from progressive history"----it is an institutional constitution, though not written.. Such a constitution, whose provisions are to be derived from the changing precedent of six centuries of historic progress, must be radically defective; for as these precedents are made by delegated authority of parliament, its authority of parliament, it results that the government may augment it own powers at will, and thus usurp the omnipotency which should only belong to the Body-Politic—The people

In these American states the history and usage for more than a century has settled that the structure of government and the definition of its powers by the Body-Politic should be prescribed in a written constitution, leaving no honest pretext for transcending the bound fixed thereby, in the uncertainty of historic precedents and customs .. Sworn to obey that written constitution, The officers who violates it must stand convicted of a perjured usurpation of authority..

Sec, 56

In this country the early practice was that the Body-Politic should, through its representatives in a convention elected by the voters, adopt a constitution and nothing more ..

The question as to the right of suffrage in the election of this convention, the number of its members, how representation should be distributed among the people, when and how the election is to be held, when and where the convention is to meet, have been determined by an instrumental, not by an enabling, act passed by the de facto

Legislature of the Body-Politic. This use of the de facto government is, according to the views already set forth, a necessary expedient to avoid alternatives of chaotic confusion and social anarchy; for how could the Body-Politic, composed of all the men and women and children in a society settle these practical question themselves.. A resort to the existing order of

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Things is, therefore, inevitable, if action is to be obtained without social disintegration.. But it must be well understood that the instrumental act of the de facto government is simply a medium through which the potential sovereign, or Body-Politic, may utter it authoritative voice. The convention, when met, is the incorporate representative of the real Body-Politic, The real Sovereign people..

When convention frame a constitution, as that is its only charge, it is functus officio Whether it is consummated work shall be submitted to a vote of the people, and if so, what shall be the basis of suffrage, and what vote shall be shall be necessary to give it final effect, are questions as to which there has been no settled cannon in our political science and no uniformity of customs..

It may be stated, however, as a fact, that all constitutions of the original state were ordained by convention, without a submission of the constitution so framed to a popular vote for ratification. The deliberate act of the representatives elected by the Body-Politic was thought to have the sanction of the latter without a subsequent vote. And this was unquestionably the general view of all the states when, in the federal convention which composed the constitution in 1787,their consummate act was submitted for ratification to each state through its separate convention, without any subsequent sanction by the popular vote of its people. The amendments to the constitution of the United States are to be adopted by the legislature or conventions of the several states, without the necessity of submission to a popular vote..

During the last half century or more it has been the usual practice for the conventions to frame the constitution and submit it to a popular vote for final ratification; but this practice has had exceptions and it may be safely said that the validity of a constitution will not be held to depend upon its final ratification by popular vote

The practice in Virginia may be mentioned as an example

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The first constitution of Virginia, drawn by George Mason was adopted in convention of the state on the 29th day of June, 1776, which was not ratified by popular vote. It was judicially held to be valid in Kamper V. Hawkins and continued in full operation until the constitution in 1830 was adopted.. In that year a convention was called by legislative act to amend the constitution, and it decided to submit it constitution it proposed to the voters entitled to suffrage under the proposed constitution, which greatly enlarged suffrage beyond what had been allowed under the constitution of 1776.. It was ratified by that popular vote. The constitution of 1850 was adopted in convention and submitted to a popular vote for ratification. The constitution of 1870 was adopted in convention and ratified by popular vote, But, by its twelfth article, amendments thereto may be proposed in the Senate and the house of Delegates and if agreed to by the majority of the general assembly next chosen, shall then be submitted to the people for ratification and upon such ratification shall become a part of the constitution. The practice in other states need not be especially averted to, except that recently the state of Mississippi adopted a constitution in convention which was established by the act of the convention without a submission of it to the vote of the people.. Whether such a constitution so established shall be held to be the constitution of the state, without ratification by popular vote, has been questioned.. All doubt of its validity would seem to be settled by the fact that the constitution of the United States is held to be binding upon each of the states of the union, though it was ratified by a convention of the people of each state, and not by any submission to popular vote.. If, therefore a constitution of a state should be held invalid because not ratified by popular

1 1,Viringian cases, 20 the state of Mississippi was affirmed

2 During the year 1889 Louisiana in the case of William’s V. Mississippi,

also adopted a new constitution, U.S. 213, But, it seems that the question

without submitting it to the people. Under discussion was not raised in the case

The validity of the constitution of

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Vote, It would raise a doubt as to the validity of the constitution of the United States, which was ratified by convention without submission to a popular vote..

Section 57, In case of submission to popular vote for ratification, a question may arise whether it may be ratified by a majority vote, or whether some other larger vote should be required. This question will be considered more fully under another head hereafter.. but it may be said that, ordinarily. In any state where the interest of the people are not radically antagonistic, but harmonious--- where the population is homogeneous , and not heterogeneous --- a numerical majority of the people may be safe.. As has been said, the majority has no natural right and jural right to control the minority;; for when two antagonistic interest exist in a state, to give control to that which has majority of votes would give to that the right to destroy the other for its own benefit.. Ordinarily, however, the mere diversity of interest will not make ratification by the majority vote a serious, much less a radical , evil, for as a constitution is a permanent system, regulating general and not special interest, The voters will act rather with a view of permanent protection of their interest for all time, than for the promotion of any one of them by a mere temporary advantage..

But the propriety of regarding the diverse interest involved in the adoption of a constitution has been signally illustrated in the history of our federal constitution.. That was to be a compact between thirteen separate states. Each was required to separately ratify it in order to be bound by it.. None could be bound but by its own ratification. The numerical majority of the states taken as a whole could bind no single state, unless a majority of its convention ratified it. This instituted the concurrent majority of many instead of the numerical majority of the whole. So also the amendments to the constitution of the United States depend on the concurrent majorities of the many states (three fourths of the states)and not on the majority of the whole.

1 const. U.S Art. 6.

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And on the one point the equipollencey of the state representation in the senate cannot be taken away without the consent of the state affected thereby, though the unanimity of all the other states were secured

Section 58

The representative Body-Politic so assembled in convention for the formation of the constitution is, as we have seen , charged with the delegated duty from the real Body-Politic, so to organize the government, to prescribe the limit of its powers, as to conserve the liberty of the individuals composing it …In a proper sense it may be considered to be a method by which by which the individuals of a state make an agreement to be bound by this representative act as that of the sovereignty of the Body-Politic In other words we reach here, if ever, the domain of social compact, not as originating society, or not as pre-existent to it, but as the act of already society, laying the foundation and raising the superstructure of the government, the organic social force, upon principles agreed upon as just in such manner as approximately, if not completely, to gain the universal consent of the real Body-Politic It is, as has been said already, the solemn and imperative duty of this Body-Politic, representative as it is of the real Body-Politic, to conform its action to the conservation of the liberties and interest of the people..

For it must never be forgotten that as the actual consent of all is impracticable, for reasons already assigned, the work of constitution-making by convention of the representative Body-Politic, being a delegated trust, must be performed under a solemn sense of responsibility for its just discharge; not to obtain advantage for any portion of society at the expense of others, but to accomplish the end of all polity in promoting the welfare of each and all, and in protecting the liberty and right of each individual to the maximum of of good consistent with social peace and order.. A notable example of this work at this stage of organization is presented in the Federal Union of the Common wealth’s established on this continent in 1789..

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As will be shown hereafter, thirteen free, sovereign and independent states made a compact resting on the consent of each expressed in the convention of the people of each of them; and thus by the terms of the constitution itself, established it "between the states so ratifying the same" it was thus not a social compact, but an interstate compact, with the free and separate consent of each by its own convention; not by the consent of all inhabitants of the thirteen states, nor by the consent of all the inhabitants of each state, but by the distinct organic consent of the convention of each as a separate Body-Politic, thus constituting a Union ---- A multiple of these Body-Politic, for the common purposes defined by the terms of a written compact… It is a federal compact of states, not a social compact of men; A federation of which states are the units; not a social compact of which men are the units it is a constitution based on unanimous consent of the states as members to it, not on the universal consent of the individual men who are subject to its authority, by the organic consent of several states of which those men are representative citizens.

Section 59 In further consideration of this work of constitution making, it is the ultimate requirement of all political systems in modern times, and in a large sense in all eras, that the organic social force we call government must be vested with three classes of powers in order to make its organization efficient for the social state..The first of these is the ordainment of rules for the civil conduct of men in their relation to each other, and of each to the state. These rules, which should be made to protect each in his liberty against all others, and must prescribe what is right and forbid what is wrong, and are generically called laws.. Law is the expression of all the will of the organic social force (government) in order to conserve the peace of society and protect the liberty of its members.. This is the supreme power in the state----The Body-Politic acting through the legislative department of the government..

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The second of these is that which applies the law so made to special cases, which arise from the inter-relationship of men by contact and contract. It does not make law, but declares the law as applicable to each of such cases.. This is the supreme power of the Body-Politic, acting through the judicial department of government..

The third of these is that which brings before the judicial department the persons and things as to which contention has arisen for the maintenance of right against wrong; and which executes the mandate of the law as adjudged by the judicial department.. These two functions are the supreme power of the Body-Politic exercised through the executive department of government..