POWER IN THE CONSTITUTIONAL SYSTEM. 223 



" While under our Constitution and form of government the great mass 

 of local matters is controlled by local authorities, the United States, in their 

 relation to foreign countries and their subjects or citizens, are one nation, 

 invested with powers which belong to independent nations, the exercise 

 of which can be invoked for the maintenance of its absolute independence 

 and security throughout its entire territory." 



Justice Gray repeated the theory in Fong Yue Ting v. United 

 States : ^ 



" The United States are a sovereign and independent nation, and are in- 

 vested by the Constitution with the entire control of international relations, 

 and with all the powers of government necessary to maintain that control 

 and to make it effective." 



Aside from the power to exclude ahens. the court has derived the 

 power to acquire territory from this theory,^ but in other cases the 

 latter power has been implied from the power to make treaties, 

 and to declare war.* 



The general theory of national powers derived from sover- 

 eignty has not been approved by commentators^ or by the weight of 

 judicial decisions. Thus in Kansas v. Colorado Justice Brewer 

 emphatically repudiated the " doctrine of sovereign and inherent 

 powers." ® 



2 Fong Yue Ting v. U. S., 149 U. S. 698. 



3 Jones v. U. S., 137 U. S. 202, and discussion by Willoughby, op. cit., 

 p. 340. See also cases cited. Ibid., pp. 454-455. 



4 American Insurance Co. v. Canter, i Pet. 511; Flemming v. Page, 9 

 How. 603; Willoughby, op. cit., p. 339. The power to admit new states to 

 the Union has also been suggested as a ground for annexation, though such 

 an interpretation of the clause (Constitution, IV, sec. 3, cl. i) was not 

 intended by the drafter of the Constitution. See letter of Gouverneur Mor- 

 ris to Livingston, 1803, Life and Writings (Sparks), 3: 192, quoted in Wil- 

 loughby, op. cit., p. 328. 



5 Willoughby, op. cit., p. 69, who, however, approves a limited applica- 

 tion of the theory in respect to foreign relations, Ibid., p. 45. " It cannot, 

 therefore, be maintained that, merely because the United States is classed 

 as a ' sovereign nation,' the government or any part of it can therefore per- 

 form a sovereign act beyond the scope of the purposes for which it was 

 created, for although the nation is sovereign the Government is not. Com- 

 plete sovereignty resides in the people as a whole, and not in any or all of 

 the public officers." D. J. Hill, Present' Problems of Foreign Policy, N. Y.. 

 1919. p. 155- 



'^ Kansas t'. Colorado, 206 U. S. 46. 



