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States, requires careful discrimination between the actual and apparent facts in order to determine the true nature of such sovereignty. The real and the apparent results of historical events must be distinguished and the mind of an American student must be freed from the bias and prejudice which for a half century have influenced writers upon political science in dealing with the institutions of the United States.
It is an accepted principle of the law of nations that every state, whatever may be its population, power and resources, is the political equal of every other state, and that its sovereign is independent and supreme within the state. There is no such thing as degrees of sovereignty among states; the nature of real sovereignty precludes such a thought. Now let this manifest truth be applied to the problem of sovereignty presented in the federal state of the United States.
This condition of independence and equality obtaining among states was recognized in America during the war for independence by each of the thirteen colonies having an equal voting power in the revolutionary government and also in the government established by the articles of confederation; and this equality prevailed irrespective of the great contrast in the territorial extent, wealth, and population of certain of the allied colonies. From this fact alone it may be assumed that during the period from the commencement of the Revolution to the adoption of the Constitution of 1787, each one of the thirteen original states was a distinct, independent political society with a separate sovereign, otherwise this assumed equality would have no theoretical or practical basis.
A federal state or union, originating from the joining together of several independent states, is from its composite nature a political organism, in which the individual units are such states instead of persons. If this statement is correct and the likeness is at all complete, the same general rules which apply to a state composed of persons ought to apply to a federal state composed of states, and the same incidents should be manifested.
It has been shown that the sovereignty in a single state in times of domestic peace is shared equally by a body of qualified individuals, and that the chief sovereign acts are the adoption of a constitution and of constitutional amendments. Applying this test to the American Union, which presents an example of a complex type of federal state, the federal constitution and all amendments to it should, if the simi
larity to a single state exists, be adopted by the states of the union voting as units, each state having an equal voice in such sovereign acts. This is indeed the fact.
There is, however, this difference between a single state and the particular federal state under discussion. In the adoption of the Constitution of the United States no state was considered to be subject to its provisions and to the government which it established until such state had voluntarily and formally submitted to the instrument. In the case of a single state, on the other hand (unless Pufendorf's theory of a “governmental contract” is accepted), every individual, whether willing or unwilling, is compelled to coöperate in maintaining the government established and to obey the will of the sovereign as declared by the sovereign or through the medium of an authorized agent. At least theoretically this difference exists and has been generally accepted as existing. Here are the facts. It was provided by the Constitution of 1787 that it should become operative upon being adopted by the people of nine of the thirteen states which had united under the articles of confederation. Nine was a majority so large that they doubtless possessed the physical force to compel obedience from any or all of the other four states if they declined to accept the constitution. The question is, would those that assented to its provisions have compelled those declining to submit? Suppose Rhode Island had finally and emphatically refused to become a member of the union, would the other states have permitted it, considering its geographical situation, to remain independent and free from federal jurisdiction and law? It is, and must remain, an open question, since all the thirteen states voluntarily came into the union. There seems to be, nevertheless, but one rational answer to this hypothetical question, and that is that the strong for their own self-defense would have coerced the weak. The difference, therefore, which is stated above may be imaginary rather than real; an erroneous theory rather than a right one. The opportunity to test its correctness never arose.
Having once entered into the community of states and submitted to the rules of the majorities fixed by the Federal Constitution, a state was in much the same status as that of a naturalized citizen who, haying sworn allegiance to the government of a state, must bear the burdens as well as enjoy the privileges of citizenship. A state, on becoming a member of the federal union, is bound to abide by the will of the
constitutional majority no matter how tyrannical and unreasonable such majority may be, or to what extent changes in the fundamental law may affect its original condition or modify its local institutions. There is, however, one important exception to this rule. If a state doubts whether the constitutional majority or the government established by it actually represents the possessors of the real sovereignty, it may appeal to force to determine where the superior physical might of the union rests. It is a question of fact rather than of right, although the states composing a federal state possess the so-called natural right to rebel against tyranny and oppression, as do the individual members of a single state, a right in fact to test the reality of the sovereignty which is being exercised.
Sovereignty in times of domestic peace rests in those who as units adopt and amend the constitution, whether in a single or a federal state. In the United States these units are clearly the political groups of individuals, each of which forms a separate state of the union, and not the individuals themselves. Amendments to the organic law come into operation upon being approved by three-fourths of the states and not by any fixed majority of all the qualified citizens in the union as a whole.
An essential characteristic of the possession of sovereignty, when domestic peace prevails within a state, is equality among the members of the possessive body of qualified individuals. This equality exists as between the states composing the United States, but it does not exist as between United States citizens resident in different states. For example, Nevada and New York, as states, have an equal voice in passing upon an amendment to the constitution of the federal state, but on account of their great difference in population a citizen of Nevada has nearly two hundred times more voice in such legislation than a citizen of New York. A still more forceful illustration is that of a United States citizen residing in one of the federal territories, who in spite of his full citizenship has no voice at all in constitutional enactment. These facts are cited simply as cumulative evidence of the assertion, that the states as units and not the citizens of the United States are the assumed possessors of federal sovereignty in times of internal peace.
From the foregoing it will be seen that, in times of peace, the individual states in a federal state like the United States stand in the same relation to the federal sovereignty that the male citizens of legal age stand to the sovereignty in a single state. To carry the analogy further in the case of the United States—the territories of the United States are similar to citizens of the male sex in a single state, who are minors, but who will in time attain to equality in sovereign rights; and colonies are like the females in a state, who owe it allegiance but lack the inherent qualities to become possessors of the sovereignty. Thus the American federal system is the rational and logical development of the republican principle as it appears in a single state.
The order of the consideration of sovereignty in a federal state has been reversed from that followed in the case of a single state for the reason that a federal state is the product of peaceful conditions and internal peace is necessary to its continuance. It might be argued from analogy to a single state that in times of domestic war the equality of states composing a federal state, which is assumed in times of peace, disappears, giving place to the true measure of sovereignty, physical force, determined by the resources and military strength of the individual states. To maintain such a proposition the assumption must be made that the states in a union continue as separate and distinct units in determining the location of the real sovereignty. However harmonious with the federal principle such an assumption may be, and however logical it may appear to thus continue the analogy between a single and a federal state in their relations to sovereignty, experienced facts deny the truth of the assumption and the correctness of the analogy.
Political units, such as the states of a union, are the product of reason and agreement, and not of force. They are, therefore, in fact artificial in so far as they are considered units. The exercise of force in a federal state; that is, the expression of the real sovereignty, of which the American Civil War is a noteworthy example, proves that such sovereignty rests upon a deeper foundation than the states as political units. In the case of a domestic conflict involving the entire union a state is divided through the adhesion of a portion of its citizens to one side of the contest and of another portion to the other side, without regard to the opinion of the majority. Though the majority of the individuals in certain states may give their support to one of the belligerent parties, and the states may be said to be in favor of that party, the minority may, by uniting with the opposite party in other states make the physical strength of such opposition superior. It is apparent that the individual, rather than the state, is the important factor in determining the location and possession of the real sovereignty. The true possessor of such sovereignty is, therefore, that mass of individuals in a federal state, which, regardless of the relations which the individuals may bear to the separate states, has the power through the exercise of their combined physical strength to compel obedience throughout the union. Furthermore, this mass of individuals, being able without limitation to enforce absolute submission to their collective will, possesses a complete sovereignty, which may be exercised without regard to the political existence of territorial boundaries of the separate states. Thus a union of states, under the stress of civil war, loses its federal character, and becomes in fact a single state, a nation, although it may, at the will of the sovereign, maintain federal institutions throughout the war.
From the foregoing the following conclusions are established: (1) A federal state cannot exist in its federal character during the progress of a civil war involving the entire federal state. (2) There is no such thing as real federal sovereignty. (3) The real sovereignty, which becomes manifest by the exercise of superior force throughout a union of states, is national. (4) A federal state having been subjected to the exercise of the real sovereign and thereby nationalized, its national character is not destroyed though it returns, with the consent of the real sovereign, to the forms and practices of a federal system.
Since, therefore, domestic peace is essential to the existence of a federal state, a federal sovereign, and federal sovereignty, the further consideration of such sovereignty in these notes must be predicated upon internal peace and with a full recognition of the artificial character of such sovereignty.