The Framing generation bequeathed a brilliant governing form to posterity. Perhaps its most notable feature is the separation of powers. Far less well-known, yet just as important, is what the Framers did with legal and political sovereignty. To review from previous posts:
- The legal sovereign has unlimited, absolute, and supreme law-making power. The Constitution is the supreme law-making expression of the legal sovereign.
- The political sovereign is the single person or body that writes statutes. As per Article I § 1, Congress is America’s political sovereign; it is responsible for crafting statutes necessary and proper to implement enumerated powers.
Both sovereignties are indivisible, and in most governments, they are coincident. The King in Parliament, aka Parliament, was legally and politically sovereign. The English constitution was whatever Parliament decided it to be. No Parliament could encumber future Parliaments. Since sovereignty is indivisible, Parliament could not share its supreme and statutory lawmaking sovereignty with another person or institution.
Upon independence, each state legislature assumed the qualities of legal and political sovereign. It is why they easily, and with clear consciences, ignored or violated the Articles of Confederation. Since sovereignty is indivisible, it wasn’t shared with the Continental Congress.
When the federal convention of 1787 issued its draft Constitution to Congress, it appeared to Anti-Federalists that the Framers attempted the impossible. Didn’t they split both babies, legal and political sovereignty between two classes of government, the new federal and preexisting state governments? There must be a single supreme authority. If the new government was supreme, it meant the dissolution of state authority.
When viewed through the lens of experience, then yes, the new plan, unlike Parliament or state governments under the Articles of Confederation, did indeed attempt the impossible.
In early October 1787, James Wilson of Pennsylvania, a member of the federal convention, and a future associate justice of the Supreme Court, described how the Constitution made the Declaration’s consent of the governed’ legal sovereignty a reality. Instead of attempting the impossible, of sharing legal sovereignty between the states and new government, neither of them were legally sovereign! Wilson explained that the people-at-large were the legal sovereign, and dispensed, via their Constitution, certain enumerated powers to the new government. In other words, the legal sovereign granted itemized, enumerated statutory authority, political sovereignty, to the new government with the rest of statutory authority remaining with the states.
The truth of Wilson’s explication is in the Constitution and the way it was ratified. Beginning with We the People, the Preamble informs the reader that American civil society gathered to “form a more perfect Union . . . and secure the Blessings of Liberty to (themselves) and posterity.” When the Framers referred the proposed supreme law to the people of the states, in their capacities as people of the states, rather than having it ratified in any of several other ways, they were in fact asserting that that was where legal sovereignty lay. The Continental Congress, state governors, state legislatures, and the voters in every state had the opportunity to reject this assertion; when they unanimously confirmed the ratification procedure, they confirmed the assertion.
Whereas coincident legal and political sovereignty was previously thought inseparable, the Framers’ formal recognition of legal sovereignty in the people through their plan of ratification was a breathtaking advancement in political science. Recognition of legal sovereignty in the people wasn’t limited to the establishment of the republic; through Article V the legal sovereign created peaceful means to adjust, modify, and amend the supreme law of the land.
In Part V, we will examine the workings of legal sovereignty in Article V. We’ll also find that due to the efforts of Article V opponents, sovereignty is once again on the move.
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.
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.