Electoral vs. Sovereign Capacity: American Conventions

My last post touched on the religious, societal and political upheavals endured by 17th century England. The outcome was twofold: an English Bill of Rights crafted and ratified by a non-parliamentary convention and the end of the Stuart line of kings. Members of parliament alternately served as both political representatives and delegates of the sovereign people. To this day, as evidenced by the recent Brexit referendum, the British system does not differentiate very well between the electoral and sovereign capacities of the people.

While war and religious turmoil preoccupied the mother country, her colonies on the North American continent fought for their survival. As theorized a few decades later by John Locke in the second of his Two Treatises of Government (1698), England’s young colonies existed in a state of nature in which each exercised their God-given societal right to defend themselves from Indians incited by the French. To secure their safety, they sometimes gathered in extra-governmental, unauthorized-by-parliament conventions to form leagues for the purpose of self-defense.

For instance, in 1641, delegates from Rhode Island, Connecticut, Massachusetts, and New Haven convened to establish The United Colonies of New England. Its preamble proclaimed their people came to America with one and the same end in view, namely, to advance the cause and enjoy the liberties of the gospel in purity and with peace. The combined population of these precarious colonies was a mere twenty-four thousand souls. This league, which lasted forty-three years, in many important respects met the expectations of its founders. It combined the strength of the colonies. It regulated their relations with each other. It was used as a high court to determine questions of jurisdiction. It managed the relations with the Indians, and sometimes negotiated with the French and the Dutch.

More colonial conventions for self-defense:

1684 – A convention was held at Albany, consisting of officials representing
Virginia, New York, Massachusetts, and Maryland, and the sachems of the Five
Nations.

1693 – Governor Fletcher of New York proposed a meeting of commissioners from the New England governments, Virginia, Maryland and Pennsylvania to be held at New York, to agree upon the quota of men and money each should contribute for the common defense.

Additional meetings occurred in 1694, 1709, 1711, 1722, 1744, 1748, 1751, 1754. While some were sanctioned by the Crown, the British government could do little to stop a regular correspondence between colonial legislatures of which it was perpetually suspicious.

Thus, America had an established tradition of conventions and mutual cooperation among the colonies long before the Revolutionary Era.

Beginning in the early 1760s, extra-legal institutions formed by popular conventions emerged that sought to bring some measure of order and stability to the chaotic western regions of South Carolina, North Carolina and Pennsylvania. These ad hoc efforts at self-government where there was none, set the stage in eastern cities where there was no shortage of government or organized mob action. As royal government waned, the Sons of Liberty and other popular groups emerged to assume the actual functions of government. The Stamp Act congress of 1765 was the first colony-wide convention for the purpose of dealing with too much government, meaning oppression, rather than too little, for self-defense.

Since 1620, Americans participated in local self-government through their electoral capacity under various charters and Crown sanctioned corporations, but only upon independence did they have to deal with the question of sovereignty.

Sovereigns and sovereigns alone may form government and by early 1776 the sovereign capacity of the American people was undisputed. However, in what form was this authority, this sovereignty to be asserted? The movement of thought regarding sovereignty during the Revolutionary Era was not linear. It emerged in fits and starts and was uneven and disconnected. Upon withdrawal of the English sovereign, by what process was sovereignty of the people to be established and expressed? The various colonial assemblies, having spent years in opposition to Great Britain, had to deal with suddenly casting themselves free and turn their efforts from resistance to actual governance. As inevitable independence approached, and in an age when a man’s word was his sacred bond, members of the leftover colonial assemblies could hardly be expected to break their loyalty oaths to George III. The matter was of no slight importance, for even if members were not bound by oaths, by what right power could legislative assemblies speak for the sovereign people at all?

In what form was this consent? Could the institutions that crafted statutes under a king also amend charters and constitutions? We had not quite grasped entirely, although it was forming, that there was a difference between fundamental and statutory law. This would be a momentous break with our English political science history, because parliament served as judge of those fundamental laws of England. Why should the newly independent American legislatures not do the same? Well, they did.

Thomas Jefferson wrote in his Notes on the State of Virginia, that the ordinary legislature may alter the constitution itself. The central problem was that since the Virginia legislature drew up the Virginia constitution in the first place, the constitution was just another ordinance subject to change by subsequent legislatures. The early New Jersey legislature for instance, never questioned its ability to alter fundamental law; in 1777 it changed by a simple act the very wording of its constitution. Legislative violations of the South Carolina constitution were so flagrant, said Aedanus Burke in 1783, “that the very name of a democracy or government of the people, now begins to be hateful and offensive.” James Madison lamented in 1785 that the legislative power (like that of parliament) appeared to be indefinite.

The American Revolution was in trouble; it was aground on the shoals of a too mutable representative democracy in which the electoral and sovereign capacities of the people commingled.

Fortunately, in the depths of this distress, men such as Madison and Jefferson realized that constitutions must reflect the sovereign will of the people and be set above and superior to the legislative, the body designed to express the people’s electoral will.

But, by what vehicle should the sovereign people express their will? Through the thoroughly familiar and un-revolutionary convention of extra-legislative delegates of the sovereign people.

What was perhaps most revolutionary about our revolution was that in the span of just eleven years, Americans replaced a contractual arrangement between king and subject, with a Lockean compact among men born in equality. We distinguished between supreme earthly law ensconced in a Constitution, and day-to-day statutes subject to the limits of the Constitution. We differentiated between the electoral and sovereign capacities of the people.

My conclusion is that America circa 2016 is in reverse gear, it is retrograde. America is in trouble in large part because the electoral and sovereign capacities of the people have been corrupted. During the New Deal, when congress began in earnest to pass laws outside the limits of the Constitution, it took on sovereign powers. The last time we Americans dealt with a legislative that asserted sovereign powers was in our pre-revolutionary days under the British parliament.

It gets worse. In the eighty-odd years since FDR, the sovereign powers unconstitutionally assumed by congress have slowly drifted into ever fewer hands, into those of the executive and judicial branches. Recall that the revolutions, wars and religious conflicts that consumed 17th century England were, at their cores, attempts to settle the question, “Where the Sovereign?” Did sovereignty reside in the Stuart kings, or was it shared with a parliament of mixed electoral and sovereign duties? Not since the days of James II has sovereignty over America been asserted by so few.

Where England rejected the Stuarts and the Divine Right of Kings and embraced parliamentary sovereignty, Revolutionary America rejected parliamentary sovereignty and espoused a popular sovereignty distinct from the electoral capacities of the same people. So, America, where is our nation’s sovereignty? Does it reside in a handful of black-robed lawyers and a president, or does it reside within us, We The People? By our neglect, practical sovereignty is out of our hands; it is long past time to restore our sovereignty, and with it, free government.

An Article V convention of the sovereign people’s delegates isn’t radical at all. Conventions to deal with either too little or too much government go back to our earliest colonial days and must be resorted to again.

We are the many; our oppressors are the few. Be proactive. Be a Re-Founder. Join Convention of States. Sign our COS Petition.

References:

Frothingham, Richard. The Rise of the Republic of the United States. Boston: Boston, Little, Brown, and Co., 1873. Internet.
Natelson, Robert G. “Founding-Era Conventions . . . .” Florida Law Review (2013): 618-691. Internet.
Wood, Gordon S. The Creation of the American Republic 1776-1787. The University of North Carolina Press, 1998. Book.