persons conducting it, the conditions of their labor and the rates they may charge, - this by the year 1908,-and the meaning of the words "among the several States" from the natural physical transportation across State lines, to a combination or contract made in one or more States intended to act in others or in effect carried out in others. It is perhaps obvious that we intend to withhold the right of conducting interstate commerce from any corporation not conforming to a Federal standard. Whether we shall go further and deny it to individuals; whether, indeed, Congress has the constitutional right to deny it to individuals; and whether, on the other branch of the definition, we shall extend it from commerce, in the sense of interstate traffic, to manufacturing, mining, or producing goods intended to be sold outside of the State where they are manufactured, mined, or produced; and to the returns, or the profits, or the fortunes, or the disposition of the fortunes derived therefrom; and still more, to the contractual relations, the conditions of labor, etc., of the persons so engaged, are all matters for the future to settle.

Finally, we must never forget that there is a division of power more important still, and also made for the first time in the American Constitution; that is to say, the powers, rights, or liberties reserved in the people of the United States, not delegated by them to the Federal power or always, even, to the State Governments formed or to be formed. This principle we have discussed in Chapter I. It is expressed in the frontispiece in the central domain “Y," left white, "virgin still with the people. "It must be particularly noted that this is the only infinite domain of power recognized in the Federal Constitution. All the others are definite, delimitated; given, or denied. There has, indeed, of late been a notion that there is something like an inherent national power, indefinite in extent; but this idea can find no place in any logical study of the Constitution; if there be such powers, they simply fall under the head of implied powers of the Federal Government. And from the point of view of our study, there is no difference between an expressed power and one implied. After the Supreme Court of the United States has found an implied power to exist, by necessary implication or otherwise, it becomes for our purposes just as much a part of the Federal Constitution as if it were definitely expressed. The wording of the articles of Confederation (Article II) that "each State retains every 1 See The American Constitution," p. 197.

power. which is not by this confederation expressly delegated to the United States . . ." fell to the ground with the adoption of the Federal Constitution eight years later, and received its coup de grâce in the Civil War; but because this is so, we must not fly to the other extreme and hold powers to reside in the Federal Government, whether they were ever given to it or intended to be given by the people, expressly or impliedly, or not. The "inherent national power," therefore, finds its natural and legitimate place in our zone of "A"; but is not to be robbed from the central liberties of "Y." The great right reserved to the people, of course, is that of a republican form of government. The next is that of personal liberty. A republican form of government is forever guaranteed to the States, not, apparently, to the territories; still less to the insular possessions; for the somewhat contradictory opinions of our judges on the insular cases seem at least to involve this result: that there is a tertium quid, something other than a State or a territory as hitherto understood. Just what a republican form of government means, it may be for the future to settle. On the one hand, it may not be a military dictatorship or military power generally, save, perhaps, in the insular possessions; or in time of actual war, or as a consequence thereof; on the other hand, according to the textwriters, it must involve representative government, and by the letter of our Constitution, the institution of private property. The right of personal liberty was originally and expressly guaranteed to citizens of the States alone, but practically, by the Fourteenth Amendment and many decisions, to United States citizens in the territories; while the general institution of slavery, indeed, is the one thing forbidden by the Constitution even in our insular possessions. The rest of the Federal Constitution, however, does not, by the prevailing opinion, extend to the insular possessions, except, at least, in such doses as Congress may choose to administer it. As to the frame of government, the Constitution makes the most sacred thing in it the last sentence in the fifth article, providing that the Constitution itself may never be so amended as to deprive any State of its equal suffrage in the Senate; this, indeed, being the strongest recognition of States' rights in that document, outside of the Tenth Amendment, and, indeed, put more strongly than in the Tenth Amendment, as it is the one instance in which the Constitution itself recognizes the right of secession.

The other cardinal rights reserved to the people are in general

all those liberty rights discussed in our seven first chapters; in other words, substantially the English Constitution. These are, for the most part, set forth in the first eight amendments. The people are declared in the Preamble to be the sovereign, though the expression of that sovereignty is, in the Fifth Article, shifted to legislatures or popular conventions in three fourths of the States. The political rights are, broadly speaking, popular representation, equal suffrage for the lower house, control of their own elections and courts, impeachment of Federal officers, the power of the purse in the lower house of Congress, uniform taxation for the general welfare, limitation of military appropriation to two years, practical freedom from direct taxation by the Federal Government, and prohibition of special privilege; most important of all, that the judges shall hold their office for life, not subject to removal by the Executive, and for a fixed compensation; and the careful separation of the powers already referred to.

2

3

Many of these rights are doubly safeguarded by being forbidden both to the nation and to the States.' Freedom of trade among the States, supremacy of the Federal Constitution, a republican form of government, liberty and racial equality are so guaranteed. It will be noted that Massachusetts (1780) preceded and New Hampshire (1792) followed the Federal Constitution in reserving to the people every power, jurisdiction, and right which was not by them expressly delegated to the United States of America in Congress assembled. A more striking statement still is found in West Virginia (Article I, 2): "The government of the United States is a government of enumerated powers, and all powers not delegated to it, nor inhibited to the States, are reserved to the States or to the people thereof. Among the powers so reserved by the States, is the exclusive regulation of their own internal government and police; and it is the high and solemn duty of the several departments of government, created by this Constitution, to guard and protect the people of this State from all encroachments upon the rights so reserved."

1 Book II, Chap. III, "ZX."

2 See Book III, § 193, notes.

Hampshire, but omitted, in accordance with modern doctrine, from the later

Sic, in Massachusetts and New Constitution of West Virginia.

CHAPTER XI

THE STATE CONSTITUTIONS

MANY of the State Constitutions, notably of Virginia and Massachusetts, were adopted before the Federal Constitution itself,1 and served to a certain extent as a model for it, and it is always important to remember that the two parties bringing their influence to bear upon the adoption of the State Constitutions changed positions entirely from those occupied by them in considering these, when they came to consider the Federal Constitution. The latter, in its most centralized form, giving largest power to the Federal Government, was backed by the Federalists; generally the educated and propertied classes, who were desirous of a strong central government, not only from motives of personal ambition, but because they desired protection from the absolute democracy of the State Legislatures. They wanted the nation to be strong abroad, their own property and contracts to be protected and respected at home, and their trade and business not to be taxed or interfered with by State regulations. Too great extension of the Federal power was, however, opposed by those whom we should now call Democrats, Thomas Jefferson, Patrick Henry, and others, jealous of too much government of any sort, who desired above all things 1 Virginia, June 29; New Jersey, vania and Maryland, was the first AmJuly 13; Delaware, Sept. 21; Pennsyl- erican Constitution actually adopted, vania, Sept. 28; Maryland, Nov. 11; that of South Carolina (March 26, 1776) North Carolina, Dec. 18, 1776; Georgia, being a political frame of temporary Feb. 5; New York, April 20, 1777; government for the "Colony" and soon Massachusetts, March 2, 1780. In followed by the Constitution of 1778. It Connecticut the charter of Charles II uses the word "Commonwealth;" the (1662) was ratified, and a simple Bill Declaration of Independence, and the of Rights added, in 1776. New Hamp- Constitution of Delaware are first to shire, after one or two abortive at- say "State." Pennsylvania, Massatempts, adopted its Constitution June chusetts, and Kentucky are also still 2, 1784. Charles II, in 1663, granted Commonwealths; Connecticut (1776) to Benedict Arnold and other "trustie calls itself a Republic, Massachusetts and well-beloved subjects" a charter a 'free, Sovereign, and Independent for Rhode Island and Providence plan- State; " while Maine is officially the tations which lasted until 1842, but State of Maine, and Rhode Island also this granted autonomy, with the liber- "of Providence Plantations." Thus ties of the common law. Virginia's, doth one star differ from another in followed closely by those of Pennsyl- glory!

to maintain the political liberty of the individual, and his freedom in his home affairs; while as to the State Governments, having enjoyed for the first time in modern English history complete legislative power unhindered even by a Constitution or a Protector, popular leaders were desirous of preserving their sovereignty, and therefore wished to give indefinite powers to the State Governments and particularly to the State Legislatures, and withhold as much as they could from the Federal Government. For, the powers of a State government being original, not delegated, its legislature represents a power that at its origin was sovereign. Here, therefore, the Federalists became the upholders of individual rights and property, and imposed the checks in the State Bills of Rights that we find so notable in Virginia and in Massachusetts. It is as true as are most antitheses that the people imposed the Bill of Rights upon the Federal Government, in the form of the first ten amendments; and that the so-called privileged classes imposed similar checks upon the State legislatures. Upon one thing only were they agreed, -personal freedom.

These Bills of Rights have been necessarily discussed already; for they concern, generally, the cardinal principles of that part of the Anglo-American Constitution which is not merely political. Every State without exception has one, though Michigan in her last Constitution chops up its Bill of Rights and distributes its provisions around "under their proper headings.' The political framework, also, has been sufficiently discussed in Chapters VIII and IX above. It remains for us to discuss here that extraordinary development of the modern State Constitution which tends to reduce all law-making to constitutional provisions; to require a periodical referendum; and to a great extent do away with representative government." New Constitutions, such as those of Alabama, Louisiana, and the seven Western States, evidently seek to embody all the broad notions of what a present majority thinks the law ought to be into the organic law of the State. Necessarily this leads to the embodying of the prejudice or caprice of the moment into the Constitution itself; for it is human nature

1 I cannot agree with Professor tinuity; moreover the Bill of Rights Dealey that this is " a good precedent." should have a greater sanctity than the (Am. Acad. P. & S. S. Supp. March organization parts of a modern State 1907, p. 21). Is the great clause 39 Constitution. of Magna Carta judicial alone? Such an arrangement destroys historical con- &c.

2 See Book III, §§ 182, 200, 209,