important man who takes part in the building of a house’’ (Holmes, Collected
Papers (1921) 200).
526. It seems to me that the words ‘‘sovereignty’’ and ‘‘sovereign power’’,
used repeatedly by learned Counsel defending the 39th Amendment to
describe the constituent power, should for several good reasons, be avoided,
so far as possible, by lawyers who seek that clarity of thought for which
precision in language is the first requirement. One of these reasons was given
by Lord Bryce (Studies in ‘‘History and Jurisprudence’’ (1901) (503-504)).
‘‘The frontier districts, if one may call them so, of Ethics of Law and of
political science have been thus if tested by a number of vague or ambiguous
terms which have produced many barren discussions and caused much
needless trouble to students... No offender of this kind has given more trouble
than the so-called ‘Doctrine of Sovereignty’’. Prof. Mellwain, however, opined:
‘‘But this very fact is proof of its vital importance in our modern world, and
the wide variety of the views held concerning its essence, as well as the
conflicting conclusions to which these views still lead, may furnish sufficient
excuse for another attempt to clarify some of our ideas touching this central
formula under which we try to rationalize the complicated facts of our
modern political life.’’ Another reason for eschewing such expressions, so far
as possible, is that they are ‘‘emotive’’ or of a kind about which Mr. Leonard
Schapiro, (writing on ‘‘Key concepts in Political Science’’ Series, at p. 7)
rightly observed, ‘‘Emotive words such as ‘equality. ‘dictatorship’, ‘elite’ or
even ‘power’ can often, by the very passions which they raise, obscure a
proper understanding of the sense in which they are, or should be, or should
not be, or have been used. Confucius regarded the ‘rectification of names’ as
the first task of government. ‘If names are not correct, language will not be in
accordance with the truth of things’, and this in time would lead to the end of
justice, to anarchy and to war’’. At any rate, in America, the concept of State
Sovereignty, ranged against that of national sovereignty, did produce a civil
war which is said to have been precipitated by the decision of the American
Supreme Court in Dred Scoot v. Sandford, (1856) 19 How. 393.
527. I must preface my observations here about the concepts of
‘‘sovereignty’’ and exercise of ‘‘sovereign power’’, between which I make a
distinction with two kinds of explanation. The first kind involves an
exposition of a functional or sociological point of view. I believe that every
social, political, economic, or legal concept or doctrine must answer the needs
of the people of country at a particular time. I see the development of
concepts, doctrines, and institutions as responses to the changing needs of
society in every country. They have a function to fulfil in relation to national
needs. The second type of explanation may be called historical or meant
merely to indicate and illustrate notions or concepts put forward by thinkers
at various times in various countries so as to appropriately relate them to
what we may find today under our Constitution. We have to appreciate the
chronology or stages of their development if we are to avoid trying to fit into
our Constitution something which has no real relevance to it or bearing upon
its contents or which conflicts with these. It must not, if I may so put it, be
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