DEFINITIONS AND GENERAL PRINCIPLES.

CONSTITUTIONAL LAW in the USA(Thomas M.Cooley, LL.D)

Nation and State. —
A State may be defined to be a body politic or society of men united together under common laws for the purpose of promoting their mutual safety and advantage by the joint efforts of their combined strength.[1] The term 13 often employed as importing the same thing with nation; but the latter is more nearly synonymous with people, and while a single state may embrace several different nations or peoples, a single nation will sometimes be so divided politically as to constitute several states.
In the following pages the word State will sometimes be employed in the general sense above expressed, but more commonly it will refer to the several members of the American Union, while the word Nation will be applied to the whole body of the people coming under the jurisdiction of the federal government.
A State is either sovereign or dependent. It is sovereign when there resides within itself a supreme and absolute power, acknowledging no superior, and it is dependent when in any degree or particular its authority is limited by an acknowledged power elsewhere.[2] It is immaterial to this definition whether the supreme power reposes in one individual, or one body or class of individuals, or in the whole body of the people; whether, in other words, the government is a monarchy, an aristocracy, a republic, or a democracy, or any combination of these; for the form only determines the methods in which sovereign powers shall be exercised.

All civilized states recognize a body of rules or laws which is called the Law of Nations, and the rules are either rules of public international law, as they relate to and regulate the intercourse of states with each other, or of private international law, as they define and protect the rights, privileges, and obligations of the citizens or subjects of one state passing into another, or owning property, making contracts, or conducting operations that may be governed by the laws of another. In contemplation of the law of nations, all sovereign states are and must be equal in rights, since from the very definition of sovereign state it is impossible that there should be in respect to it any political superior.
In theory sovereignty must be a unity, and the sovereignty of a state must extend to all the subjects of government within the territorial limits occupied by the associated people who compose it, so that the dividing line between sovereignties must be a territorial line. In the law of nations for the purposes of international intercourse some encroachment upon the theory is admitted, and the sovereignty of one state is projected within the jurisdiction of another, so as to retain within its rule its ambassadors and ministers resident abroad, and its ships of war in foreign ports. In American constitutional law a peculiar system is established; the powers of sovereignty being classified, and some of them apportioned to the government of the United States for its exercise, while others are left with the States. Under this apportionment the nation is possessed of supreme, absolute, and uncontrollable power in respect to certain subjects throughout all the States, while the States have the like unqualified power, within their respective limits, in respect to other
subjects.[1] Over certain other subjects the States have a qualified dependent or defeasible power, inasmuch as their action is liable at any time to be overruled, and their powers to become dormant, by the exercise of a superior power which is conferred upon the nation over the same subjects.[2]
Constitution. —
The term constitution may be defined as the body of rules and maxims in accordance with which the powers of sovereignty are habitually exercised.[3] A constitution is valuable in proportion as it is suited to the circumstances, desires, and aspirations of the people, and as it contains within itself the elements of stability, permanence, and security against disorder and revolution. Although every state may be said in some sense to have a constitution, the term constitutional government is only applied to those whose fundamental rules or maxims not only define how those shall be chosen or designated to whom the exercise of sovereign powers shall be confided, but also impose efficient restraints on the exercise for the purpose of protecting individual rights and privileges, and shielding them against any assumption of arbitrary power.[4] The number of such governments is not as yet great, but is increasing.
A constitution may be written or unwritten. If unwritten, there may still be laws or authoritative documents which declare some of its important principles; as we have seen has been and is still the case in England. The weakness of an unwritten constitution consists in this, that it is subject to perpetual change at the will of thelaw-making power; and there can be no security against such change except in the conservatism of the law-making authority, and its political responsibility to the people, or, if no such responsibility exists, then in the fear of resistance by force. In America the leading principle of constitutional liberty has from the first been, that the sovereignty reposed in the people; and as the people could not in their collective capacity exercise the powers of government, a written constitution was by general consent agreed upon in each of the States. These constitutions create departments for the exercise of sovereign powers; prescribe the extent of the exercise, and the methods, and in some particulars forbid that certain powers which would be within the compass of sovereignty shall be exercised at all. Each of these constitutes for the State the absolute rule of action and decision for all departments and offices of the government, in respect to all the points covered by it, which must control until it shall be changed by the authority which established it. Whatever act or regulation of any department or officer is in excess of the power conferred by this instrument, or is opposed to any of its directions or regulations, is altogether void. The constitution, moreover, is in the nature of a covenant of the sovereign people with each individual thereof, under which, while they intrust the powers of government to political agencies, they also divest themselves of the sovereign power of making changes in the fundamental law except by the method in the constitution agreed upon. The Constitution of the United States creates similar governmental trusts and imposes similar restrictions. The weaknesses of a written constitution are, that it establishes iron rules, which, when found inconvenient, are difficult of change; that it is often construed on technical principles of verbal criticism, rather than in the light of great principles; and that it is likely to invade the domain of ordinary legislation, instead of being restricted to fundamental rules, and thereby to invite demoralizing evasions. But, the written constitution
being a necessity in America, the attendant evils are insignificant as compared with the inestimable benefits.
In the following pages, where the Constitution is spoken of, the Constitution of the United States will be intended unless otherwise explained.
Unconstitutional Law. —
A law is sometimes said to be unconstitutional, by which is meant that it is opposed to the principles or rules of the constitution of the state. An unconstitutional enactment is sometimes void, and sometimes not; and this will depend upon whether, according to the theory of the government, any tribunal or officer is empowered to judge of violations of the constitution, and to keep the legislature within the limits of a delegated authority by annulling whatever acts exceed it. According to the theory of British constitutional law the Parliament possesses and wields supreme power,[1] and if therefore its enactments conflict with the Constitution, they are nevertheless valid, and must operate as modifications or amendments of it. But where, as in America, the legislature acts under a delegated authority, limited by the Constitution itself, and the judiciaiy is empowered to declare what the law is, an unconstitutional enactment must fall when it is subjected to the ordeal of the courts. Such an enactment is in strictness no law, because it establishes no rule: it is merely a futile attempt to establish a law. The remedy for unconstitutional enactments in England must therefore be political or revolutionary, while in America they may be found in the ordinary process of the courts. Still even in America some cases must be beyond the reach of judicial cognizance, because the questions involved are purely political. Such, for example, were questions involved in the reconstruction of the States recently in rebellion, and the question growing out of the attempt to overthrow the charter government of Rhode Island.[1]
The Might of Revolution. —
The authority of the British Crown over the Colonies was rejected, and a government created by the people of the Colonies for themselves, and this afterwards radically changed and reformed in the adoption of the Federal Constitution under the great and fundamental right of every people to change their institutions at will, — in other words, under the right of revolution. It is true that the colonists in the incipient period of the change planted themselves upon established rights, instead of seeking or desiring a revolution. Their purpose, therefore, was to maintain old established principles of the Constitution, instead of overturning them; and they occupied a conservative position, resisting innovations which the imperial government was attempting to force. Nevertheless there was no settled principle of the constitution that limited in any manner the sovereign right of Parliament to change at will the laws protecting the life, liberty, and property of the subject; and had the same laws which in this particular oppressed the people of the Colonies been applied to the people of the realm, they would have been within the acknowledged power of the Parliament. So in regard to the Colonies the right of the imperial government to rule in all respects might be defended on precedent, and the leading publicists of the day affirmed it. It was nevertheless the fact that the exercise of imperial power in the particulars complained of was tyrannical and in disregard of constitutional principles, and that resistance was directly in the line of English precedents which at the time were almost universally approved in England itself. There was consequently ample ground for resistance, and if the other conditions for revolution existed, the colonists were right in attempting it.
The right of revolution may be said to exist when the government has become so oppressive that its evils decidedly overbalance those which are likely to attend a change, when success in the attempt is reasonably certain, and when such institutions are likely to result as will be satisfactory to the people.[1] In this last particular the probability of success will depend largely on the extent of the revolution attempted, — whether it extends to the laws in general, or only to the head of the government. In America only a change in the general sovereignty was intended; in respect to the general laws, the revolution was strictly preservative. It became necessary, nevertheless, to make considerable changes in state laws and institutions before the revolution was perfected, and when these were completed in the adoption of the Federal Constitution, the revolution was fully justified in the establishment of more satisfactory institutions than had existed before.
The Constitution: by whom adopted. — To a proper understanding and construction of the Constitution it becomes important to know at the outset who were the parties to it, — by whom it was adopted, and what it was meant to accomplish. In these particulars the present work cannot enter into the field of speculation or discussion, nor would it be important to do so. The general principles governing the case have been judicially determined, and the political departments of the government have accepted the conclusions. It therefore becomes sufficient for our purposes to say here, that the Constitution was agreed upon by delegates representing the States in convention; that it was submitted to the people of the several States by their respective legislatures; that it was adopted by the people through delegates elected for the express purpose of considering and deciding upon it, and that the people of the States, as well as the States themselves, thereby became parties to it. It was therefore properly declared in the preamble, that "We, the people of the United States, do ordain and establish this Constitution for the United States of America."[1] By the adoption of the Constitution the people of the States before united in a confederation became a nation under one government,[2] and the citizens of every State became also citizens of the United States.[3] The purpose of the Constitution is forcibly and clearly declared in the preamble. It was "in order to form a more perfect union, establish justice, insure domestic tranquillity, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity." These purposes collectively, it has been well said, "comprise everything requisite, with the blessing of Divine Providence, to render a people prosperous and happy."[4] By the new amendments to the Constitution the freedmen become a part of the people, and all the purposes for which it was made and established are to be deemed to have them in view, and to contemplate their protection and benefit as a part of the body politic.
Not a mere Compact. —
The confederation of the States had existed by force of a mere compact, and for want of power in the common authority had so completely failed in the purposes of its formation as to justify its being superseded by revolutionary, though peaceful, means. Among its chief defects was the fact that it operated on States only, and that the highest sanction it could give to its lawful determinations was that of advice, or entreaty; it could not command, and it could not enforce. The Constitution which was adopted to supersede it, on the other hand, is an instrument of government, agreed upon and established, and rendered efficient as such by being made Operative upon the people individually and collectively, and, within the sphere of its powers, upon the States also.[1] This was the judicial view of the Constitution from the first,[2] and it has been practically and finally settled against opposing theories, by the action of the several departments of the government, extending over the whole period of the existence of the Union under the Constitution; by the acquiescence of the people in this view, and their forcible resistance to the attempt made to supersede it; and, finally, by the adoption of the thirteenth, fourteenth, and fifteenth articles of the amendments to further strengthen and consolidate the Union under the government of the Constitution.[3]
The Union Indissoluble. —
By the Articles of Confederation "the Union was declared to be 'perpetual.' And when these Articles were found to be inadequate to the exigencies of the country, the Constitution was ordained ' to form a more perfect Union.' It is difficult to convey the idea of indissoluble unity more clearly than by these words. What can be indissoluble, if a perpetual union made more perfect is not?"[4] When a State is once in the Union, there is "no place for reconsideration or revocation, except through revolution, or through the consent of the States."[1]
The States Indestructible. —
"But the perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self-government by the States. Without the States in union there could be no such political body as the United States.[2] Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may not unreasonably be said that the preservation of the States and the maintenance of their governments are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible States."[3]