no legal right as against the authority that makes the law on which the right depends.12 Mr. Zane starts out with the erroneous impression that Mr. Justice Holmes had asserted the principle "that no law can create a legal right against the government." If this be true, says Zane, "we may as well apologize to Germany at once for daring to question the divine right of government to override every law, contritely confess nostram culpam, nostram maximam culpam, and start anew on a truly Hegelian basis; for the divine right of government is simply the divine right of Kings writ large." In a historically learned essay Zane then traces from Roman times the doctrine iterated and reiterated by moralists, jurists, and courts that public officials should be, and, under constitutional systems of government, are subject to the operations of law. It must, however, be clear from what has gone before in the present treatise, as well as from the long line of decisions of the Supreme Court of the United States from which no departure was suggested in the Kawananakoa case, that Justice Holmes did not intend to assert, or the court to hold, that no law could create a legal right against the Government of a sovereign State. Mr. Zane's argument thus exhibited an ignoratio elenchi.

Sovereignty Not Impaired by International Obligations. The legal omnipotence of the sovereign State, constitutionally viewed, is not impaired by the obligations assumed by it in its agreements with other sovereign Powers, or by the existence of constitutional legal provisions, written or unwritten. The nature of the limitations imposed upon States by treaties or by International Law will be discussed in a later chapter of this volume in which the nature of the State as internationally viewed is examined. Here it is sufficient to state the result of "A Legal Heresy," in the Illinois Law Review, XIII, p. 431.

the inquiry there pursued, namely, that, in sensu strictiore, these limitations are not legal in the sense in which that term is employed in positive or analytical jurisprudence. In order to determine the nature of the limitations placed upon state action by Constitutional Laws, it will be necessary to examine with some degree of care the essential character of these laws.

Laws Do Not Constitute a Limitation upon the State's Sovereignty. It has been seen that when sovereignty is predicated of a State, there is asserted the doctrine that the State is the creator of all the laws in accordance with which its own activities are conducted. In other words, it sets to itself, that is, to its own governmental organs and officials their legal powers. This legally unlimited competency-Kompetenz Kompetenz, as the Germans term it-distinguishes the sovereign State from all other human associations of a political or juristic character. The State is supreme, not only as giving the ultimate validity to all the laws which are to fix the rights and obligations of those over whom it chooses to claim jurisdiction, but as itself determining the scope of the legal powers of its own governmental agencies and the manner of their exercise. Thus, at any one time, the domain of the legal and political liberties of the individual is simply that field of interests which the State has willed shall be protected from violation, whether by private persons or by public officials. From the possible control of the State itself, however,-from the very source of all law-there can be no possible legal guarantee of immunity, except in the formal sense that, from its very nature, a State must express and execute its will in the form of law. Private individuals and those who are in possession of public authority may, indeed, as a matter of fact, invade the rights of the individual and destroy those interests which existing law defines and establishes and which the

State professes to defend, but such action, because illegal, cannot be said to be the act of the State itself, even if committed by its highest governmental officials.

Constitutional Law Defined. The distinction between constitutional and ordinary statute laws cannot as a general proposition be based upon the fact that the former are embodied in formal written instruments of government for the reason that some States, Great Britain for example, do not possess written constitutions. XEqually unsatisfactory are the criteria that the constitutional laws may not be amended or repealed in the same manner as other laws, or that they are applied by the courts in preference to other laws which may be in conflict with them. This is shown not only by the fact that in such countries as England there is no formal distinction, either as to creation or repeal, between constitutional and other laws, but also by the fact that, in most of those countries which have adopted written constitutions, the courts do not assume the authority to refuse recognition to statutory enactments which contravene the provisions of those constitutions. And, in truth, in some of those constitutions, the formal provision which is made for constitutional amendments makes the process only slightly more difficult than that of ordinary legislation. In countries like the United States which possess written instruments of government it is of course possible to limit the application of the term constitutional to those provisions which find statement in these instruments. This gives to these laws a very distinct character for the reason that the amendment of these instruments is made more formal and more difficult than is the process of ordinary legislation, and because, in the United States at least, the doctrine is fully established that, in case of conflict, other laws or attempts at legislation must yield to the provisions of these written constitutions. But, when this defi

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nition of constitutional law is accepted, the distinction as to substantive content between constitutional and other laws is wholly abandoned, since American constitutions contain many provisions which have no direct relation to the form and powers of government but concern matters of private law.

In order, then, to have a definition of Constitutional Law which is susceptible of general application and which also has the merit of going to the substantive content rather than to the form of the laws that are defined, we are led to denominate as constitutional those laws which relate directly to the form of government that is to exist, and to the allotment of powers to, and the imposition of limitations upon, the several governmental organs and functionaries.13

Constitutional Law Limits the Government But Not the State.Constitutional provisions do not purport to control the State but only its Government. These laws are the creation of the State itself for its own purposes, and the limitations upon public action which they impose are not designed for, and do not operate as, a limitation upon the State that comes from a source outside itself and thus restrains the free exercise of its legally omnipotent will. This is so even in those cases in which, as in the United States, the courts hold null and void all laws the provisions of which are inconsistent with constitutional mandates, and where the amendment or repeal of these mandates is made extremely difficult. The limitation

13 It will of course be recognized that even this definition does not draw a clear line of distinction between constitutional and other municipal laws so as to make it always easy to draw the line of distinction. Constitutional provisions defined according to their substantive content shade off into administrative laws and regulations and executive or administrative decrees. This difficulty in classifying laws in clear-cut categories is one that runs through the entire field of jurisprudence. But, after all, the only purposes of such classifications is to obtain a convenient working apparatus of juristic thought, and this, these general, though not absolutely definite, classifications secure.

upon the exercise of the State's sovereignty is still a purely formal one.

It is common to speak of constitutional laws as of a legal force higher than that of ordinary legal statutes. Not only is this not true of the constitutional laws of many foreign States, but, even in the United States, it is not a correct way in which to describe the distinction.14 Because our constitutions set limits to the legal

"As evidencing the extent to which constitutional and ordinary law are assimilated in Germany, we may quote the following from Laband's standard work, Das Staatsrecht des Deutschen Reiches (2d ed., I, 546). "There is no will in the State," he says, "superior to that of the sovereign, and it is from this will that both the constitution and laws draw their binding force. The constitution is not a mystical power hovering above the State; but, like every other law, it is an act of its will, subject accordingly to the consequences of changes in the latter. A document may, it is true, prescribe that the constitution may not be altered indirectly (that is to say, by laws affecting its content), that it may be altered only directly, by laws modifying the text itself. But when such a restriction is not established by positive rule, it cannot be derived by implication from the legal character of the constitution and form an essential difference between the constitution and ordinary laws. The doctrine that individual laws ought always to be in harmony with the constitution, and that they must not be incompatible with it, is simply a postulate of legislative practice. It is not a legal axiom. Although it appears desirable that the system of public and private laws established by statute shall not be in contradiction with the text of the constitution, the existence of such a contradiction is possible in fact and admissible in law, just as a divergence between the penal, commercial, or civil code, and a subsequent special law is possible." (Cf. Borgeaud, Adoption and Amendment of Constitutions in Europe and America, trans. p. 69 et. seq., where this passage is quoted and adversely commented upon.) Such a condition as above described by Laband would, of course, be impossible in the United States, where the decision as to the conformity of a given statute with the constitution is vested in an independent judiciary. But, in the German Empire, though it was provided that no amendment of the constitution should be made, if there were fourteen votes opposing in the Federal Council (Bundesrath); yet, since it lay only with the legislature or the Emperor to decide when a given statute did operate as an amendment of the constitution, it was possible to change that instrument in any way desired by ordinary legislative enactment, so long as that body or the Emperor did not see fit to declare such acts to be unconstitutional in character. Thus, as a matter of fact, the German constitution was several times modified, as Laband says it properly might be done, by special laws in which more than fourteen opposing votes were registered in the Upper Chamber. What has been here said in reference to the Empire held true as well in Prussia. In France, likewise, there is no provision guarding against a modification of its constitution by ordinary laws, which, without nominally changing its text, do in fact violate its principles. Thus Dicey, in enumerating the various senses in which the term "unconstitutional