ordinary legislative enactments, as well as to determine the actual purpose and function of a constitution. It is this problem which concerns the states in the modification of their fundamental laws.

The problems, then, of state constitution-making involve the development of a clearer line of demarcation between the scope of constitutional provisions and that of legislative acts, the simplification of the method of amendment so as to retain the fundamental distinction between constitutional law and statutes, and the adoption of more effective methods of securing referendum votes on proposed constitutional changes.

SUPPLEMENTARY READINGS

C. G. HAINES, The American Doctrine of Judicial Supremacy (The Macmillan Company, 1914).

A survey of the development of the theory and the practice of judicial review of legislation in the United States.

C. A. BEARD, The Supreme Court and the Constitution (The Macmillan Company, 1912).

The opinions of the makers of the Constitution as to judicial review of legislation.

LAWRENCE B. EVANS, Cases on Constitutional Law (Callaghan & Company).

A useful collection of leading cases on American constitutional law.

W. F. DODD, Modern Constitutions, 2 vols. (University of Chicago Press,

1909).

A reprint or translation of the constitutions of most of the important nations.

WOODROW WILSON, Constitutional Government in the United States (Columbia University Press, 1908).

A discussion of the fundamental principles of the American government.

J. Q. DEALEY, Growth of American State Constitutions (Ginn & Company, 1915).

A brief history of principles and tendencies in the development of state constitutions.

W. F. WILLOUGHBY, The Government of Modern States, Chaps. VI and VII (The Century Company, 1919).

CHAPTER II

PRINCIPLES AND PROBLEMS OF FEDERAL GOVERNMENT

THE DEVELOPMENT OF FEDERAL GOVERNMENT

THE Federal form of government is a comparatively modern kind of political organization. Those who framed the Constitution of the United States had few precedents to guide them. There were leagues of cities in ancient Greece, particularly the Boeotian and the Achæan leagues, with the control of foreign affairs in the hands of a central government. A few leagues of a similar nature were also formed in Italy during the period of Rome's rise and development. The Federal idea, however, did not have as active a growth in Rome as it did in the more free and diverse conditions of Greece. During the middle ages there came into existence various unions of cities, such as the Lombard and Hanseatic Leagues. To compare these ancient leagues with our modern federations it is necessary to define first the distinction between a confederation and a federation.

A confederation is a union of component cities or states in which each one of the units retains its sovereignty and independence. In no case is there any authority outside of the separate divisions to exercise coercion and enforce rights against the individual cities or states. Confederations are usually temporary unions for purposes of defense. There are various degrees of confederation, such as international unions, in which commissions are instituted for the regulation of common interests; monarchical unions, such as that which formerly existed between Austria and Hungary, in which two separate nations are combined under the control of a common ruler; and also outright confedera

tions, in which a group of states create a common government and delegate to it authority over certain specified affairs. The chief modern instances of instruments forming confederacies were the Articles of Confederation, by which the American states established a common government, each state retaining its sovereignty, and the articles of union among the Swiss cantons which existed prior to the formation of the present federal constitution of Switzerland.

In contrast with the different forms of confederations there is the type known to-day as the Federal form of government. This is a system of political organization in which the separate states retain their authority over internal affairs and grant to one central government the sovereignty and ultimate control over certain specified functions of common interest. The growth of the Federal form of government began in its modern sense with the formation of the Constitution of the United States. Other countries in which the Federal idea has been enacted into the constitutions and laws are the Republic of Argentine, the Dominion of Canada, the United States of Brazil, the Australian Commonwealth, the South African Republic, Switzerland, and the German Empire. In addition, there is a movement among the British Isles toward the federation. of the various divisions of England and of the self-governing colonies. Furthermore, in the various plans for international peace and the establishment of leagues to enforce peace, the federation of the world is one of the pervasive ideas of modern times. The Federal form of government as inaugurated under the Constitution of the United States was an experiment, but as an experiment it has met with such success that other nations have adopted the fundamental principles of federalism.

PRINCIPLES OF FEDERAL GOVERNMENT IN THE UNITED

STATES

Republican Form.-The United States as organized under the Constitution of 1787 has been described as a Federal

republic based on the principle of government by representatives. The nature of this republic was thus defined by James Madison:

We will define a republic to be a government which derives all its powers directly or indirectly from the great body of the people and is administered by persons holding their offices for a limited period or during good behavior. It is essential to such a government that it be derived from the great body of the people, not from an inconsiderable portion or class of it. It is sufficient for such government that persons administering it be appointed directly or indirectly by the people and that they hold their appointment by either of the tenures specified.

In short, the form of government described by Madison was a democratic republic whose authority was to rest upon the will of the people, but whose functions were to be performed by regularly chosen representatives who were to be subject to constitutional restrictions and requirements.

The Separation of Powers.-Among the theories of government widely accepted at the time of the formation of the Federal Constitution was the theory of separation of powers which formed a feature of the first state constitutions. The general belief was that liberty could be preserved only under a government in which the powers were divided and in which the departments acted as a check one upon the other. Though the members of the federal convention did not attempt to carry out the theory of the separation of powers in its extreme form, and though they permitted the overlapping of functions, such as the granting of certain legislative powers to the President and of some executive powers to Congress, and the control over both executive and Congress by the courts, nevertheless the intention was unquestionably to put into force and effect the fundamental principle of the theory of the separation of powers as commonly accepted at that time. The separation theory has been departed from many times in practice, and has resulted in certain undesirable conditions which have led to adverse criticisms, to which reference has been made in the preceding chapter.

Checks and Balances and the Doctrine of Limited Government. The makers of the Federal Constitution believed that it was necessary for each department to serve as a check on the others in order that government might not be too strong and that tyranny might not result. There was thus instituted what John Adams defined as "a complication and refinement of balances which is an invention of our own," in which the idea was to set one department against another and to have every officer checked by some other public authority. And, in keeping with the spirit of the times, the founders of the Republic were interested in setting limits to the powers of government as well as instituting a strong central organization. Consequently, some well-defined limits were placed upon those wielding public authority. These limits were generally defined in bills of rights and were intended to protect the individual from arbitrary arrest or imprisonment, to preserve the freedom of religion, freedom of speech, and freedom of the press, and to surround the individual with other protections, including the general proviso that he shall not be deprived of his life, liberty, or property without due process of law, and that lawfully acquired rights shall receive governmental protection. The check and balance idea is a unique feature of the American commonwealth, and it has, on notable occasions, resulted in the paralysis of government functions, particularly when the executive and legislative departments have been under the control of different parties.

The Distribution of Powers.-Another principle of Federal government in the United States is that enumerated powers are granted to the Federal government. Within the scope of the powers granted, the Federal government is supreme, but all remaining powers are retained by the states. The principle clearly stated in the Constitution is to the effect that the Constitution, laws, and treaties of the United States shall be the supreme law of the land. This principle has been taken to support the doctrine that the Federal authority is superior to that of the states and that the