1907-08 showed no relaxation of legislative activity in this direction, for they gave us the most revolutionary direct primary laws yet devised: those of Wisconsin, New Jersey, Iowa, Illinois, Missouri, Nebraska, Washington, and Kansas, leaving out of account less striking measures. Oklahoma came into the Union in 1907 with a startling constitution requiring, among other things, that the legislature shall enact laws for a mandatory primary system which shall provide for the nomination of all candidates. in all elections for state, district, county, and municipal offices, including that of United States Senator. In New York, Governor Hughes urged drastic reform in the primaries and party machinery at the legislative sessions of 1908, 1909, and 1910; and Maine, Massachusetts, and New Jersey adopted state-wide primary laws in 1911; and in subsequent years there was a steady extension of the principle of direct nominations. In the presidential campaign of 1912 a preferential primary was used in the nomination of candidates in several states.

These new laws fix the dates and places of party primaries, provide official ballots furnished by the government to all parties without charge, regulate the composition and powers of party committees, abolish conventions altogether or control their composition and procedure, institute, in many instances, direct nominations by party vote for nominations by conventions, forbid contributions by corporations, compel party committees to account for the receipt and disbursement of funds, limit the amount which the respective candidates may spend, and otherwise control the machinery and practices of all parties.1

This whole subject is treated in great detail below, chap. xxx.

PART II

THE FEDERAL GOVERNMENT

CHAPTER VIII

THE GENERAL PRINCIPLES OF THE FEDERAL SYSTEM OF
GOVERNMENT

The Doctrine of Limited Government

Ir is a common error to regard the federal Constitution as an instrument relating solely to the government that has its seat at Washington. In reality, it provides a general political system by distributing the public functions between the state and national governments and by laying down certain fundamental limitations on the powers which each may exercise. In other words, while creating a national executive, legislature, and judiciary, and marking out their spheres of power, the Constitution, expressly and by implication, also limits the domain within which the government of each state must operate. It does more: it creates a system of private rights secure against all government interference; it provides for each person "a sphere of anarchy" i - of no government so to speak, within which he may act without any intervention on the part of public officials. In some matters the individual is protected from the federal government, in others from the state government, and in still others he is entirely free from both governments. These limitations are not mere political theories or vague declarations of rights; they are fairly precise rules of law expounded and applied by the courts, enforced by proper executive authorities, and respected by the citizens.2

1See Burgess, Political Science and Constitutional Law, Vol. I, pp. 174 ff. 2 For the constitutional limitations on the federal government, see Readings, pp. 134 ff., and on the state governments, ibid., pp. 391 ff. By a compari son the limitations common to both may be ascertained.

This system of private rights or individual liberty, however, cannot be understood by learning the clauses of the Constitution which contain prohibitions on the state and federal governments. It is really a difficult and technical branch of law, to be mastered only by a painstaking examination of a long line of judicial decisions interpreting those clauses. Failure to recognize this fact constantly leads to many incorrect assertions about "the rights of American citizens." For example, the police of a city forbid a Socialist parade or break up a street corner meeting; immediately there appear in the newspapers letters from indignant citizens denouncing the police for preventing the exercise of the "rights of free speech guaranteed by the Constitution of the United States." An examination of the clause, however, to which they refer shows that it is Congress that can make no law abridging the freedom of speech, the states being left to their own devices in dealing with such matters. It is not only ill-informed citizens that make this error. Such a serious and responsible body as the Republican national convention in 1860 asserted in its platform, "That the maintenance of the principles promulgated in the Declaration of Independence and embodied in the federal Constitution, 'that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness; that to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,'-is essential to the preservation of our republican institutions." Of course any student of history and law knows that the Constitution does not embody any such principles, and that the federal government is controlled only by the definite rules of law imposed by the written instrument itself.

The fundamental character of these rules may be best illustrated by a comparison with the English system. Any law passed by Parliament, that is, by King, Lords, and Commons,

must be enforced; it cannot be called into question by any court; the only remedy for the citizen is at the ballot-box when members of the House of Commons are elected. If the British Parliament, therefore, should pass a law confiscating the land now owned by private persons, there would be no relief for the victims, unless the same Parliament or a succeeding one could be induced to repeal the law in question. If the Congress of the

United States, however, should pass such a measure, it would be the duty of the courts on the presentation of the proper case to protect the land-owner in his property rights by declaring the law null and void, —in conflict with that section of the Fifth Amendment which provides that no person shall be deprived of life, liberty, or property without due process of law; and that private property shall not be taken for public use without just compensation. Likewise if the legislature of a state should pass such a measure it would be the duty of the courts to protect the citizen under the Fourteenth Amendment forbidding any state to deprive a person of life, liberty, or property without due process of law compensation being, under judicial interpretation, an indispensable feature of "due process." 2

In considering the limitations on the federal government, we must remember at the outset that Congress differs fundamentally from a state legislature. The former has only those powers which are expressly conferred by the clauses of the written instrument; the latter enjoys all powers of government, except those denied to it by the federal Constitution and the state constitution under which it operates. The limited character of congressional authority is evident in the Constitution itself; and it is expressly enunciated in the Tenth Amendment, declaring that," The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." Nevertheless, Congress, acting under the clause authorizing it to make all laws necessary and proper for carrying into execution the powers expressly conferred, has been by no means as limited as the literal interpretation of this doctrine would seem to imply.3

Private Rights under the Federal Constitution

4

The constitutional limitations on the federal government fall into two groups: (a) Those designed to protect personal liberty

1

5

1 Of course private property cannot be taken for private use at all.

2 It should be noted, however, that the state retains its "police power in spite of the constitutional limitations—that is, its power to make laws in the interest of health, public safety, morals, etc. See Readings, p. 394 and below, chap. xxii. 3 Readings, pp. 66 ff. and 237 ff.; see above, p. 72. Reference: Burgess, Political Science and Constitutional Law, Vol. I, pp. 184 ff.

4

5 The limitations on state government are discussed below in chap. xxii.

against arbitrary interference on the part of the government, and (b) those designed to protect private property against confiscation and irregular action on the part of federal authorities.

I. The limitations on behalf of personal rights, which, under the Constitution run against the federal government, may be divided into five classes. In the first place, Congress cannot make any law respecting the establishment of a religion, nor can it interfere with the freedom of religious worship. This does not mean, however, that any person has a right to commit an act, under the guise of a religious ceremony, which transgresses the ordinary law of the land. This point was discussed by the Supreme Court in a case involving the right of Congress to prohibit polygamy in the territory of Utah and punish offenders who violated the law. Under this statute a Mr. Reynolds, who was indicted for the crime of polygamy, set up by way of defence the contention that the church to which he belonged enjoined the practice of polygamy upon its male members, and that, under a religious sanction and according to a religious ceremony, he had married two wives. The Court held, however, that religion has to do only with the relations of man to "an extra-mundane being," and that no citizen can claim a right, in the name of religious freedom, to violate a criminal statute.

In the second place, Congress has no power to abridge freedom of speech or of the press. It was the purpose of this clause to prevent Congress from establishing a press censorship or enacting any law prohibiting political criticism. In spite of this express provision, Congress passed in 1798 a Sedition Act providing heavy penalties for resisting the lawful acts of the federal officials and for publishing anything bringing or tending to bring the federal government or any of its officers into disrepute. Under this act many American citizens were fined and imprisoned for what would be regarded to-day as harmless criticism of public authorities. When the question of the power of Congress to punish persons libelling the government came before the Supreme Court incidentally, the Court refused to pass upon it in the abstract.3

1 Reynolds v. United States, 98 U. S. R., 145.

2 In the territories and the District of Columbia, of course, Congress, having general legislative power, can establish the law of libel and slander. Congress legislates directly for the District of Columbia, and in the organized territories the legislatures make the law under authority of Congress.

3 United States v. Hudson and Goodwin, 7 Cranch, 32.