could and would not deny that the intention of the Constitution was to make an effective government over men

as men.

It was plain, too, that the Constitution provided for dividing powers or for distributing them between the States or their governments, on the one hand, and the central government on the other. Certain powers were given to the national government and it was from the first supposed that this government had only the power granted.2 The powers thus bestowed were intended to be those of a general character, those which experience and theory pointed to as the ones which, for the good of the whole, should be committed to one central authority, those, in other words, which, like the management of the post office, the making of treaties, the regulation of coins and coinage, the conduct of war, could not wisely be left to the individual States. In speaking of a body like the United States in which there are numerous governments and in which there is one central authority with certain powers, we use the term "federal state," a term distinguishing it from a body politic like France which we call a unitary state. The Constitution of the United States is noteworthy because it did mark the establishment of this kind of state, what was called by the men of 1788 a Confederated Republic." 3

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2 This was made undeniably evident by the Tenth Amendment (See) which we must consider interpretative only and not a real addition of a new principle. See, also, the doctrine of implied powers discussed in McLaughlin, A Hist. of the Am. Nation, pp. 205-6; MacDonald, Select Documents, pp. 83, 84, 87; No. XIX, post. 3 I do not wish here to beg the question as to whether in 1788 or 9 the men believed that the Constitution established only a closer relation between many States, each one retaining its ultimate right of withdrawing — the doctrine of State sovereignty (See McLaughlin's A Hist. of Am. Nation, pp. 299-300). But even with State sovereignty, the central government had the right to act on men rather than apply to governments; not even the advocates of State sovereignty, as they afterwards spoke, would deny that the United States was something more than an old fashioned alliance. And even if

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If one looks at the Constitution even hastily he will see that it is divided into distinct parts and that each on the whole treats of a particular line of subjects. The Preamble indicates the purpose in establishing the Constitution, a purpose evidently based on the trying experiences of the old Confederation when the tie of union was only a rope of sand" and when the "new roof," to use the expressive words of the day, was not yet set up to shelter the States and the people in their newly found liberties. Then come seven Articles.

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First is an article (Article I) dealing with the legislative department, providing for a House of Representatives and a Senate, the House to be made up of members chosen by the people in the various States, the Senate to consist of members chosen by the legislatures of the various States,* each State sending two senators. In this article we find the powers delegated to the central government, for though the powers are in so many words delegated to Congress it is a reasonable supposition that the other departments of government must have powers that naturally result; the president, for example, would naturally have the right to execute the laws made by Congress in pursuance of the powers thus delegated. This Article also includes a statement of certain things that cannot be done (See Art. I, Sec. 9) and certain restrictions upon the States.

The second article provides for a president and vicepresident to be chosen by electors chosen in the States, a provision which soon caused difficulties in operation, especially as the Constitution said that each elector should cast a ballot for two persons for president and that the one person having the highest number, if a majority, should be the question whether the United States was more than a mere body of States had to be tried out and settled by war, there can be no doubt, first, that it became a federal state in the course of time, second, that the government always acted with authority as pos sessor of great political powers.

4 Changed by Amendment XVII, which see.

president, and the one receiving the next highest number should be vice-president. This brought in the Twelfth Amendment which was adopted in 1804. To the president as executive authority the Constitution gives the duty of seeing that the laws are carried out, and he is also given the power of dealing with ambassadors and representatives from foreign countries and likewise the very significant and, as it proved, arduous, task of appointing to office with the consent of the Senate.

Article III deals with the courts; it declares that there shall be one supreme court, but does not say how many judges there shall be or just what its duties shall be, save that in most cases it is to be a court of appeal only. Here we find, also, the general description of the jurisdiction of the judiciary, that is to say the kind of cases that can in general be brought before the federal courts as distinguished from state courts. Some kinds of cases evidently could be brought before either the federal or the state courts, and such has always been the practice, for example controversies between citizens of different States. The general plan of the court system and principles defining the operation of the courts were left in large degree to Congress, and grew up partly by reason of legislation, partly by determinations and decisions of the courts themselves.5 It should especially be noticed that the Constitution does not in so many words give the power to the Supreme Court or any court to declare a law of Congress unconstitutional and hence void. That power, first plainly exercised in 1803, was declared by the court to be within its power because the Constitution is a law; it is the duty of courts to declare what the law is; and therefore any act contrary to the Constitution could not be law.

The fourth article deals chiefly with relations between the States of the Union-the duty and obligation of ex

5 See McLaughlin's A Hist. of Amer. Nation, pp. 203, 224-5. See ibid., pp. 224-5.

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tradition, i.e., the surrender of fugitives from justice; the principle that persons held to service should not, by escaping into another State, become free - the so-called fugitive slave clause"; the right of Congress to admit new States into the Union.

In the fifth article we have a statement as to the method of amendment. Two methods are provided; but in the course of time only one has been used. Congress, by a two-thirds vote of both Houses, has proposed amendments to the States; they are considered parts of the Constitution when ratified by three-fourths of the legislatures of the States. In this way, as we shall see, seventeen amendments have been adopted.

The sixth article after declaring that the debts contracted under the old Confederation should be valid against the United States, announces that the Constitution, laws and treaties of the United States "shall be the supreme law of the land"; and that "the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." This is an important section because it means that any State law or constitution at variance with the Constitution, laws or treaties of the United States, cannot be legally held to be good and binding law even in the State courts presided over by State judges. This was a principle which, it was hoped, would hold the States and prevent their enforcing laws that violated the Constitution or the constitutionally made laws or treaties of the Union. The courts of the States were called on to disregard such State action.

Finally in the seventh article it is declared that the ratification of the conventions of nine States shall be sufficient for the establishment of the Constitution. It was submitted to conventions in the States not to the legislatures

An act on this matter was passed by Congress in 1793. See, also, the great discussion in connection with the Compromise of 1850, McLaughlin, A Hist. of the Am. Nation, pp. 344-8.

for final adoption, and was ratified by eleven conventions before the end of 1788. North Carolina and Rhode Island did not ratify till after the new government went into operation.

In the course of time seventeen amendments have been adopted. The first ten may almost be considered a part of the original Constitution because they were adopted soon after the creation of the government; they were intended to be in the nature of a bill of rights, announcing principles of liberty and placing explicit restrictions on the national government.8 The Eleventh Amendment, declared in force in 1798, defines more strictly the power of the federal courts, by declaring that the courts of the United States has no jurisdiction over suits brought against a State by citizens of a State or of a foreign state. The Twelfth (1804) makes a change in the method of electing the president. The Thirteenth, Fourteenth and Fifteenth were the products of the Civil War; and of these the Fourteenth, in its first section placing restrictions on the States, has become of great importance. When it declares that no person shall be deprived of life, liberty, or property without due process of law or be denied the equal protection of the laws, it practically gives to the federal courts the right of declaring void an act of a State legislature which in the opinion of the courts violates this provision; thus the Federal Supreme Court may refuse to recognize as valid an act which appears to be contrary to fundamental principles of justice; and this power has been of great moment in recent years when the States have passed acts concerning the charges and duties of corporations; for the courts have held that, under this clause of the Constitution, corporations are persons; they cannot be arbitrarily

8 See reference to bill of rights of Virginia in McLaughlin's A Hist. of the Am. Nation, p. 162; see also, p. 196. What is the bill of rights in your own State constitution?

See McLaughlin's A Hist. of the Am. Nation, pp. 426, 473, 438441, 446.