As President Trump works to undo the outrages of the Pen and Phone President, he will issue executive orders, consult congress, and instruct his cabinet secretaries to reverse the mess their social justice predecessors left behind. The President has enormous power, and while patriots know his power isn’t absolute, too many Americans believe it nearly is, or should be.
A person or body has legal sovereignty when he or it has unlimited, absolute law-making power, and there is no person or body legally superior to him or it.
Over a series of posts, I will take a closer look at sovereignty as viewed through the lens of 18th century England and America. Then, as in recent decades, the popular notion of sovereignty evolved, and sometimes rapidly, with the times. We’ll find that sovereignty is conceptually easier to define than to determine in whom or what body it resides. History shows sovereignty isn’t static. It moves. It may be on the move today.
Lawmaking is the essence of sovereignty. In England, William the Conqueror and his successors exercised this absolute authority. While Magna Carta theoretically limited King John and subsequent kings, king-as-lawgiver sanctioned by God remained the staple of England and the continental monarchies.
Not until the mid-16th century did Parliament begin its transition from a judicial to a combined judicial/legislative body. In fits and starts, including a couple of revolutions over the next 130+ years, indivisible sovereignty finally came to rest in a combined King-in-Parliament. Sovereignty moved from a monarch with divine right to rule, to a composite, yet conceptually single body, the King-in-Parliament. Since this mixed governing form of king, lords, and commons encompassed the totality of society, society was obliged to obey the laws because every part of society presumably consented to them.
As English society and government settled down into unaccustomed normalcy by the beginning of the 18th century, her north American colonists likewise enjoyed accelerating population growth and prosperity. The English system of mixed government was kind to business and freedom.
Legal and Political Sovereignty. Sovereignty is absolute. Notwithstanding the Laws of Nature and Nature’s God, a person or body is said to have legal sovereignty when he or it has unlimited law-making power, when there is no person or body legally superior to him or it. A single body, the King-in-Parliament (or equivalently, Parliament) possessed legal sovereignty. As legal sovereign, and being unencumbered by a written constitution, nothing limits the earthly, supreme lawmaking power of Parliament. Parliament can amend its unwritten constitution as it sees fit, and no Parliament is bound by a previous Parliament.
By the political sovereign, on the other hand, is meant the man or body that writes statutes. In most countries, and certainly in England, the legal sovereign and the political sovereign are coincident. But in times of disturbance, political sovereignty may rest, for instance, in the army.
Sovereignty on the Move. Hand in hand with absolutism, sovereignty is indivisible. If Parliament was sovereign, and its legal and political sovereignties were indivisible, by what right could England’s North American colonies govern themselves? As early as 1768, Ben Franklin concluded that “Parliament has a right to make all laws for us, or that it has a power to make no laws for us.” In 1774, Pennsylvania’s James Wilson tried to determine the line between Parliamentary and colonial power to no avail. If Parliament’s authority over its colonists were denied “in any particular,” then it must be denied in all instances and the union dissolved.
As a further complication, the person of the King, not the King-in-Parliament, granted the various colonial charters. The theory ran that since our connection with the British Empire was solely through the King, our colonial legislatures had become miniature Parliaments, each headed by the same royal authority of the King. American radicals didn’t dispute the existence of legal and political sovereignty; logic simply informed them that Lords and Commons had nothing to do with them. Colonial legislatures, they reasoned, each headed by the same royal authority of the King, together formed a loosely federated empire of independent states that did no violence to the principle of sovereignty.
To most Englishmen in England, this was nonsense. Recall from High School history class, Parliament’s 1766 response in the Declaratory Act, which proclaimed that Parliament “had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America … in all cases whatsoever.”
Now, since American patriots didn’t recognize Parliament’s lawmaking authority, there was no need to charge Parliament with crimes in our Declaration of Independence. “Parliament,” the source of various vexing laws, wasn’t mentioned at all. Our vitriol was reserved for George III, whom we separated from the Commons and Lords, and to whom we owed allegiance . . . until he threw his American colonies out of his protection on December 25th 1775 and declared war upon them.
By this action, George III so much as declared the independence of his thirteen colonies. Sovereignty no longer resided in the King-in-Parliament. Where did it go? In Part II, we’ll examine sovereignty under the Articles of Confederation.
We are the many; our oppressors are the few. Now, it is our turn. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.
Orfield, L. B. (1942). The Amending of the Federal Constitution. University of Michigan Law School Scholarship Repository, 130-155.
Wood, G. S. (1969). The Creation of the American Republic 1776-1787. Chapel Hill: The University of North Carolina Press.