Recall from Part I, the legal sovereign has unlimited, absolute, and supreme law-making power. The supreme law in England, its constitution, is whatever the King-in-Parliament determines it to be. Statutory lawmaking is the expression of political sovereignty. Typically, such as the King-in-Parliament, both legal and political sovereignty reside within the same body. Sovereignty is indivisible.
The Declaration of Independence did not answer the question of American sovereignty very well. Despite the recognized right of the people to alter or abolish their form of government, the question of sovereignty continued to be an important theoretical question of politics throughout the following decade. Some held that legal and political sovereignty devolved to Congress. Others believed it belonged to the mass of the people.
Unlike today, the concept of special conventions of the people as legal sovereign hardly existed in the early 1770s. Instead, the various congresses, and conventions of representatives from the colonies, or any other gatherings not sanctioned by royal governors were outside the law. At best, they were regarded as defective lawmaking bodies; at worst, they were treasonous.
Still others, the majority, thought legal and political sovereignty fell upon the remnants of the colonial legislatures. These remnants established sovereignty through convention, meaning members of the previously chartered colonial governments gathered to form new governments. As a practical matter, this was an adaptation of our pre-war concept of sovereignty in which the individual state legislatures plus the person of the King, not the King-in-Parliament, were legally and politically sovereign over the American colonies. Upon independence, and without a King, twelve state governments assumed the entirety of constitutional and statutory, legal and political lawmaking powers.1
Through the passage of statutory law, (political sovereignty) each state eventually joined in confederation. In this treaty of friendship, thirteen republics appeared to grant extensive sovereign powers to congress. Congress decided peace/war, and foreign policy; it could build and keep a navy, borrow money, ask the states for men and money, and it performed some other duties of a general interest. Considering our experience with Parliament and George III, this was a seemingly very generous allotment of authority.
But what of the indivisibility of sovereignty? Didn’t the states relinquish legal and political sovereignty to the confederation? No, because congress had no authority to coerce the states to do anything. Compliance with congressional resolutions was entirely up to each state. State legislatures, like the King-in-Parliament were legally and politically sovereign. Just as no Parliament could hinder future Parliaments, so too were states perfectly free to violate the Articles of Confederation as approved in previous legislative sessions.
Few in 1776 envisioned a republic spanning thirteen states. Upon the war’s end in 1783, Americans were more eager than ever to oppose all encroachments of congress upon the sovereignty and authority of the separate states. As opposed to the lore of Article V opponents, the greatest force to weaken state sovereignty did not flow downward from a minority of nationalists. It came up from below, as more groups denied that state legislatures adequately spoke for the people. Sovereignty was still the issue, but state governments were put on the defensive. In the contest between the states and congress, the ideological momentum of the Revolution lay with the states; but in the contest between the people and state governments it decidedly lay with the people. Once again, sovereignty was on the move. As described by the historian Gordon S. Wood:
Civil liberty became for Americans not a government of laws, made agreeable to charters, bills of rights or compacts, but a power existing in the people at large, at any time, for any cause, or for no cause, but their own sovereign pleasure, to alter or annihilate both the mode and essence of any former government, and adopt a new one in its stead.
The Articles of Confederation didn’t dissolve just because the states lost interest after the war. In short order, Americans came to regard legal sovereignty as residing in the people and not state legislatures. Wood’s conclusion is that after a decade of out-of-doors participation by the people, in mobbing, and extra-legislative organizations including constitutional conventions, various attempted restraints on legislative authority, and heightening insistence on extreme actuality of representation, all reflected a change in Americans’ comprehension of the people’s proper role in the affairs of government. These new ideas stood against the concept of legislative sovereignty, which made sensible their intensifying claims that absolute lawmaking power lay not in any particular body of men, but in the people-at-large.
Legal and political sovereignty, previously in the King-in-Parliament, moved to thirteen state legislatures. In Part III, we’ll find sovereignty was once again on the move, toward the people-at-large in a way that threatened the existence of the American Union.
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.
Related posts: See the seven-part series, Whatever Happened to the Articles of Confederation?
- Pennsylvania was an exception. After decades of frustration with government under the thumb of the Penn family and Quakers, the people set up a wildly democratic republic.
Orfield, L. B. (1942). The Amending of the Federal Constitution. University of Michigan Law School Scholarship Repository, 130-155.
McDonald, F. (1979). E Pluribus Unum – The Formation of the American Republic 1776-1790. Indianapolis: Liberty Fund, Inc.
Wood, G. S. (1969). The Creation of the American Republic 1776-1787. Chapel Hill: The University of North Carolina Press.