168 WRIGHT— LIMITATIONS UPON STATE POWERS. 



These acts may be classified as (i) the meeting of international 

 responsibilities, (2) the making of international agreements (3) 

 the making of national decisions of international importance. The 

 first includes the observance and enforcement of international law 

 and treaty. The second includes the settlement of international 

 controversies and the making of treaties. The third includes the 

 recognition of facts and the declaration of policies of international 

 significance. Before considering the constitutional authority for 

 performing these acts, however, it will be well to recall certain 

 fundamental principles of the Constitution. 



41. • Relation Between State and National Pozvers. 



Under American constitutional law the legal competence of 

 any organ is determined by two factors, the authorization of power 

 and restrictions upon the exercise of power. With one hand the 

 people are supposed to have granted certain powers expressed in 

 written constitutions, to be exercised by governmental organs, for 

 the general welfare.^ but with the other hand they are supposed 

 to have taken away in part the powers thus granted through re- 

 strictions upon their exercise expressed in bills of rights, guar- 

 antees and prohibitions for the protection of private individuals, 

 subordinate governmental areas and particular organs of the gov- 

 ernment.- The authority for all powers exercised by organs of 



1 " The theory of our political system is that the ultimate sovereignty is 

 in the people, from whom springs all legislative authority." Cooley, Consti- 

 tutional Limitations, 6th ed., p. 39, citing McLean, J., in Spooner v. 

 McConnell, i McLean 347, Waite, C. J., in Minor v. Happersett, 21 Wall. 162, 

 172, etc. For influence of the theories of popular sovereignty and the social 

 contract on the constitutional fathers, see Merriam, Am. Political Theories, 

 N. Y., 1903, p. 38; Willoughby, Am. Constitutional System, N. Y., 1904, 

 p. 23 ct seq. 



2 The theory of constitutional limitations derived from the dogma of 

 separation of powers and from the supposed division of sovereignty between 

 the state and nation was prominent in the federal convention, but the Fed- 

 eralist (No. 84) thought a bill of rights unimportant. The Jeffersonian 

 Republicans took a different view and succeeded in having the first ten 

 amendments attached to the Constitution, thereby following the usual cus- 

 tom in state constitutions. See Cooley, of^. cit., chap. ix. p. 311 ct seq. 

 P'or influence of theories of separation of powers, divided sovereignty, and 

 natural rights upon the constitutional fathers, see Merriam, op. cit., pp. 107, 

 146, and Willoughby, loc. cit. 



