Page:Harvard Law Review Volume 32.djvu/1016

980 980 HARVARD LAW REVIEW every state was located the center of sovereignty, the power to which all else must give way. Then followed the obvious illustration of the British Parlia- ment, which could do anything it wanted except change a man into a woman. Some of us in a moment of rash inquisitiveness asked where this political superior existed in our own country. After an awkward pause we were assured that it consisted of Congress plus three-quarters of the states, since they alone could change the Constitution.^ Those were the days before federal amendments chased each other like aeroplanes across the Atlantic, and we had already learned that the Constitution would probably never be altered again because of the great difficulties involved. Somehow we were not altogether satisfied to believe in a sovereign that slept like Frederick Barbarossa to awake once in a blue moon, and was, moreover, scattered in pieces across a continent. This al- leged center of control seemed inadequate for a hundred million people, far less real than Tammany Hall, which was said not to be a part of our system of government at all. We should have been much better pleased with the explana- tion of John Chipman Gray, " The real rulers of a political society are undiscov- erable."2 The problem of the location of sovereignty within the state was less simple than our teachers would have had us believe, and now we begin to doubt whether sovereignty belongs to the state at all. Is it the sole ruler of the people who dwell in the United States, or France, or any other demarcated portion of the earth's surface? Are there other forces operating in the same territory just as powerful in their own spheres as the state, which cannot struggle against them without going down to almost sure defeat? If so, those forces share the sovereignty and leave the state only a limited control of affairs within its borders. Such is Mr. Laski's conclusion. To lawyers, of all men, this book is especially valuable, for it warns us not to exaggerate the importance of law. From a purely legal point of view, our teachers and John Austin, their master, may have been right. In our pro- fessional capacity as judges and practitioners we must acknowledge the men chosen under the Constitution as the supreme rulers of the land and assert that the Constitution is changed solely through the methods provided by its own terms. In that capacity we recognize the validity of the three amend- ments of 1865-1870 because of their formal adoption, and ignore the fact that they merely register the result of a four years' war, without which they would have been impossible. But just because this assumption that the lawgivers are the real rulers is an essential portion of our professional conduct, we ought to be careful lest we regard it as containing the whole truth. As thinkers and as citizens we must realize that there are powers behind the lawgivers, not mentioned in the Constitution, which shape their acts and sometimes success- fully defy them. Law is oftentimes only the formal expression of reality. Any corporation embodies the wiU of a group of men with a definite purpose, and that group might continue to exist even though refused recognition by the state. The Adamson Law was made, nominally by Congress, actually by un- elected bodies whose representatives sat in the gallery during its passage and whom Congress rightly or wrongly chose to obey. Formerly tariffs were regu- lated by very different unelected bodies whose representatives did not sit in the gallery. In the days of Jethro Bass, the government of New Hampshire was in his room in the Pelican Hotel. The Thirteenth Amendment was not created by Congress and the state legislatures, but by the Northern armies and the awakened conscience of a nation. Even those who disagree with Mr. Laski and hold that the state as repre- ^ For a similar view, that sovereignty is in the states collectively, see Irving B. Richman, " From John Austin to John C. Hurd." 14 Harv. L. Rev. 371. 2 The Nature and Sources or the Law, § 183.