foreign nations are entitled to assume no such Presidential omnipotence. The United States cannot be bound by new engagements until the organs designated by the Constitution have acted. In the meeting of international responsibilities, international law is prior, in the making of international engagements the Constitution is prior. CHAPTER V. LIMITATIONS UPON STATE Powers. 40. Position of the Foreign Relations Power under Constitutional Law. From the standpoint of international law the essential element in the foreign relations power of any state is the authority recognized by foreign states as representing the state and competent to meet its international responsibilities. We have seen that in the United States this authority is the President acting through the Department of State. Foreign states with claims or complaints need know nothing of constitutional powers or limitations. They are entitled to present their cases to the President through the State Department and to demand of him satisfaction according to the measure of international law and treaty. If he is unable to obtain it the United States is liable to such measures of redress as international law may permit the claimant state. In sharp contrast, is the position of the foreign relations power under constitutional law. The question is not of responsibility but of power. Under constitutional law the foreign relations power consists of those organs of government competent to perform the various acts connected with the conduct of foreign relations. These acts may be classified as (1) 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 Powers. Under American constitutional law the gal competence of any organ is determined by two factors, the anthorization 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,1 but with the other hand they are supposed to have taken away in part the powers thus granted through restrictions upon their exercise expressed in bills of rights, guarantees and prohibitions for the protection of private individuals, subordinate governmental areas and particular organs of the government. The authority for all powers exercised by organs of the national government comes from the federal Constitution either by express or implied delegation. The authority for all powers. exercised by state governments comes from their own Constitutions and may include all governmental powers the exercise of which does not conflict with the full exercise of its delegated powers by the national government, and is not expressly prohibited by the federal Constitution. This theory of the division of governmental authority between national and state governments is set forth in the tenth amendment and the sixth article of the federal Constitution. 1" The theory of our political system is that the ultimate sovereignty is in the people, from whom springs all legislative authority." Cooley, Constitutional 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 et 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 Federalist (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 custom in state constitutions. See Cooley, op. cit., chap. ix, p. 311 et seq. For 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, |