tive powers. Second, new subjects which call for state regulation have been of such significance as to require rather detailed provisions. Among such are education, corporations, elections, and parties. Third, matters which are regarded of fundamental importance to the electorate, such as the initiative, referendum, and recall, are also placed in state constitutions. Fourth, matters, whether fundamental cr not, on which the electorate desires to express a judgment are included among the provisions of the constitution. The fundamental provisions establishing a government and defining its powers are thus mingled with ordinary statutory matters. It is not possible to draw a clear line between constitutional law and ordinary law. And as the method of amendment is rendered easier, and the initiative and referendum are used more widely, the dividing line between constitutions and statutes will become even less distinct. Thus the purpose and functions of constitutions will change as community sentiment varies on questions of general public interest.

The new state constitutions are made to serve a double purpose: first, to organize and determine the powers of government, and, second, to serve as an organ of popular will through the enactment of legislation in the constitution itself. In the accomplishment of these purposes the recent state constitutions include many provisions not comprehended within the scope of fundamental law. With the disappearance of a different method of enacting constitutional amendments and ordinary acts and with the growing tendency to include legislative details in the constitution, the former distinction between constitutions and statutes seems to be losing force. And while constitutions are still regarded as instruments for organizing and determining the powers of government, they are becoming likewise an agency for the enactment of laws regarded as important enough to call for general popular approval. The difficulty now is to decide what is so fundamental as to require constitutional sanctity and what should be regulated by

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 gov

ernment.

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.