Page:Harvard Law Review Volume 2.djvu/104

86 treaty revocable by any party thereto; if the second, it is a command issued by the national sovereign, which can be changed at will by him; but if, on the other hand, we reject Austin's theory, we are at liberty to consider the Constitution neither a treaty nor a command, nor even a law at all, but a declaration of the limitations of various sovereign powers, which cannot legally be changed except in the manner provided in the instrument itself. The recent discussion in Rhode Island, of the question whether the Constitution of a State can legally be amended, except in the manner prescribed therein, turns in part upon the same principles, because, if Austin's theory is sound, the Constitution is a law set by the sovereign, who is, in the case we are considering, the electoral body of the State; and it follows that this body must have power to revoke or alter its own commands. But, if Austin's theory is wrong, it is possible that there may exist in the State no legislative or sovereign power whatever, except such as is described in the Constitution, and, if so, neither the voters nor any other body of persons can have any legal authority to make changes in the government, except in accordance with the provisions of that instrument.

It may be worth while, in this connection, to remark that, whether, like Austin, we consider a constitution a law set by an absolute sovereign, or whether we regard it as a law made without the command of a political superior, or even as no law at all, but simply as a declaration of the existing limits of sovereign power, the effect of an unconstitutional statute is in each case the same, because, if the Constitution, whatever its origin, is a law of superior authority, every inferior law inconsistent with it must be void; and if, on the other hand, without being a law it is the measure of legislative power, a statute which exceeds the limits prescribed is destitute of legal authority, and is equally invalid. On this point, indeed, and in regard to the functions of courts in dealing with such laws, all these theories are exactly in accord.

In attacking the doctrines concerning sovereignty and law taught by the analytical jurists, I have in reality only been trying to carry out their own principles. Before their day it was customary to seek a foundation for sovereignty in some antecedent right to rule, such as a divine commission or an original compact, and the great change in the theory of government which Bentham and Austin introduced consisted in their assertion that sovereignty was not a question of right, but of fact; that the sovereign was not the person