The Constitution of the United States, Its Sources and Its Application

the States the Eighteenth Amendment would not have been adopted. This observation may be repeated as to woman suffrage, the trial of which in many States led to the Nineteenth Amendment. In many ways the competition of the States has been vitalizing and progressive. It is a question whether a vast republic not having such political subdivisions could long stand.

It is not generally mentioned that our present fundamental law is the second written form of government of the United States. The first was called the Articles of Confederation. The Articles went into effect as a government of "the United States of America" in 1781. In 1777, less than a year after the Declaration of Independence, the Articles which had been drafted were adopted by the Convention chosen by the Continental Congress to frame them. But, owing mostly to disputes regarding western lands (the royal grants to the Colonies reaching westward indefinitely), the last State did not give its ratification until 1781. The Articles were so inadequate that within four years plans originated at Mount Vernon to remodel them. Washington and a company of statesmen recommended the calling of a convention the next year (1786) at Annapolis. Five States only sent representatives

1 The Continental Congress was the provisional or emergency government which was made up of delegates from the several States and which acted as their united authority from the time that the dispute with the English Government assumed its most serious aspect (1774) until the Articles of Confederation went into effect in 1781.

"In addition to the very important charge of managing the war," said President Monroe, discussing the Continental Congress, "that Congress had under consideration at the same time the declaration of independence, the adoption of a confederation for the States, and the propriety of instituting State governments, with the nature of those governments, respecting which it had been consulted by conventions of several of the Colonies. So great a trust was never reposed before in a body thus constituted."

and, therefore, the Convention adjourned to the next year at Philadelphia. All the States except Rhode Island were then present by representatives. Washington, a delegate from Virginia, was chosen to preside. "Let us raise a standard to which the wise and honest can repair," he said; "the event is in the hand of God." The Convention, which was called to remodel the Articles of Confederation, cast them aside and drafted an entirely new instrument.

Pains have been taken in the notes to state everything simply and clearly, and as fully as the restricted space would permit.

It is recommended that the index at the end of the book receive diligent study.

For historical value the dates of the great decisions and of the leading acts of Congress have been given. Citations of volumes and pages have been omitted because they are not followed up by the run of readers and they are unpleasant to most eyes. But for the help of lawyers, and others who may wish to go beyond the text, a short table of the leading cases is presented.

Acknowledgment is due to Mr. Gardiner Lathrop of the Chicago Bar, to Mr. William DeForest Manice of the Bar of New York City, and to Mr. Blackburn Esterline of the Bar of the City of Washington for very helpful readings of the manuscript.

As stated at the outset, this explanation of the Constitution has been prepared under the conviction that the American never has had within reach the means of acquiring that knowledge which, as a citizen, he should first of all possess.

CHICAGO,

February, 1922.

THOMAS JAMES NORTON.

THE AMERICAN CONSTITUTIONAL THEORY

"THE question whether an act repugnant to the constitution can become the law of the land is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it.

"That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected.

"This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here, or establish certain limits not to be transcended by those departments.

"The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained?

"If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect? Or,

in other words, though it be not law, does it constitute rule as operative as if it was a law? This would be t overthrow in fact what was established in theory; and would seem, at first view, an absurdity too gross to b insisted on."

CHIEF JUSTICE MARSHALL.