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only those powers recognized by existing constitutional law. Where, as in a State autocratically organized, few or no legal limitations upon the official authority of the autocrat or of his appointees and advisers exist, the government has, of course, practically uncontrolled legal power. In modern constitutional States, however, the governments are not only without legal authority with reference to many matters, but are obliged to exercise the authority which they do possess according to definitely determined modes of procedure. It is to be repeated, however, that the domain of the legal and political interests of the individual is simply that which, under existing laws, neither public nor private persons may legally enter. From the possible control of the State, however, through the enactment of new constitutional or statutory laws these liberties are not and cannot be exempt. Professor Burgess has put this very clearly when he says: “The individual is defended in this sphere against the government by the power that makes and maintains and can destroy the government; and by the same power, through the government, against any encroachments from any quarter. Against that power itself, however, he has no defence.”1
This characteristic of legal omnipotence thus predicated of the State is, of course, not to be construed as carrying with it an actual omnipotence of physical coercive power. The extent to which any given State, or, to speak more accurately, those who express and enforce its will, may control the actions of those subject to their authority is dependent upon manifold conditions of time and place, and especially upon the character and disposition of those to be coerced. All government, as Hume says, rests upon opinion. In every State the very existence of its government, the extent of its powers, and the manner of their
1 Political Science and Comparative Constitutional Law, I, 176.
exercise, is ultimately dependent upon the acquiescence of the people. This ultimate right of the people means, however, nothing more than that there is a limit to which political oppression and incompetence may safely go. Before this limit is reached a limit which differs in different States according to the temper and enlightenment of their respective citizen bodies—there is abundant opportunity for grievous oppression and disastrous official incompetence. The fundamental problem of practical politics the world over is thus to secure a form of political organization which will ensure a wise administration of public affairs, and be sufficiently strong and independent to maintain itself against unwarranted attack, and yet be subjected to a control which will furnish a substantial guarantee that the people will not be oppressed. This is the problem of constitutional government, and of constitutional law.
The unity and indivisibility of sovereignty
In the paragraphs which have gone before it has been indicated that, legally viewed, the essential characteristic of a State is the possession by it of a supreme lawdetermining authority termed Sovereignty. This at bute connotes upon the one hand complete freedom of its possessor from the legal control of any other political authority whatsoever; and, upon the other hand, the right of absolute and exclusive jurisdiction over the legal rights and obligations of those subject to its authority, whether these be considered individually or as grouped into larger or smaller associations of men.
As thus expressing a supreme will sovereignty is necessarily a unity and indivisible. That there cannot be within the same political body two wills, each absolutely supreme, would seem to be sufficiently obvious, and, in fact, the contrary has not often been maintained in direct terms. It has, however, been widely asserted that the
sphere of political authority may be divided into two or more distinct parts, and political organizations established in each which, within their respective fields, may be wholly independent of the control of one another. And this has been, and still is, often spoken of by the Supreme Court of the United States, as well as by other tribunals, as a division of sovereignty and as exemplified in the American constitutional system. The statement is, however, an erroneous one, and due to a confusion between the ideas of State and Government, and to a failure to distinguish between the possession of sovereignty by the State and the exercise by governmental agencies of powers delegated to them by this sovereign authority.
Though the sovereign will of a State may not be divided, it may find expression through several legislative mouthpieces, and the execution of its commands may be delegated to a variety of governmental agencies. Theoretically, indeed, a State may go to any extent in the delegation of the exercise of its powers, not only to governmental organs of its own.creation but to those of other States. In the latter case the State to whose governmental organs the exercise of the powers in question has been delegated acts as the agent of the delegating State, which State retains the legal, if not the actual, power of withdrawing the grants of authority which it has made. Thus England concedes to certain of its colonies, as, for example, Canada and Australia, almost complete authority of government and yet its legal sovereignty over these possessions is in no wise diminished or divided. So, similarly, there have been many instances in which States have placed the administration of certain of their own districts in the hands of other Sovereignties, and in the numerous so-called Protectorates we have instances of weaker and less developed States surrendering the control of their foreign relations and, indeed, certain of their domestic affairs to foreign nations, without any formal claim of sovereignty over these administered districts or weaker States being asserted by the administering powers.
Distinction between Confederacy and Federal State
Two types of governmental organization which especially illustrate the distinction between the possession of sovereignty and the delegation of the exercise of certain governmental powers are the Confederacy and the Federal State.
In a Confederacy a number of sovereign States create by their joint action a central government as their common agent for the exercise of certain powers, which it is to their interest shall be thus exercised. Each State thus co-operating remains a sovereign body-politic, united only by a treaty or other form of compact with the other States, and not only retains all the political powers not granted to the central government, but remains legally free to withdraw at any time from the Confederacy into which it has entered. Strictly speaking, the term Confederate State is thus a misnomer, for no central State exists but only a central government which acts as the common agent of each of the agreeing States. In a Federal State, upon the other hand, we have a single sovereign political person or entity which vests the exercise of certain of its powers in a central government, and the remaining powers in local governments independent of one another but all acting within their several districts as agents of the central sovereignty, the Federal State. Thus, just as it has been declared to be incorrect to speak of a Confederacy as a State, so here, technically speaking, what exists is a single State, with a governmental machinery consisting of a central organization and a number of local autonomous governing agencies. It is, therefore, more correct to speak of such a State as having a Federal form of govern
mental organization, than it is to designate it as a Federal State.2 Whether or not the constitutional units of this federally organized body are entitled to be termed States is a question more important to political theory than it is to constitutional law. Those political philosophers who make sovereignty an essential attribute of statehood are of course obliged to deny to them this title, but the constitutional lawyer is not thus obligated. It is, however, of the utmost importance to the jurist to keep clearly in mind the doctrine that the theory of a divided sovereignty is a false one, and that, conceding the sovereignty of the United States as a National State (regarding which there is now no longer controversy), it necessarily follows that the central government and the state governments do not stand over against one another as co-ordinate powers between whom the powers of public control are divided, but that, fundamentally, the former is supreme, and that, whenever a conflict of authority arises, the final decision and supremacy is with the Federal power itself.
In a Confederacy which is, as we have seen, a league of sovereign States, such coercion as it may be necessary for the central power to apply, may, in certain cases, be directed against the States as such. In a Federal State, however, such as the United States is now agreed to be, the supremacy of the national authority is never maintained by direct action against its member Commonwealths, but is exhibited in its authority to execute its will upon all persons subject to its jurisdiction, anything in the Constitution or laws of any State to the contrary
2 Despite the fact that as a matter of strict terminology the terms Government and State are to be distinguished, the use of the expressions "National Government” and “Central Government” as synonymous with “United States” as indicating the body-politic possessing the national sovereignty is so common that this usage will be followed in this treatise.