One of the concerns expressed by Article V opponents stems from an assumed equivalence between popularly elected representatives to the US House and Senate, with delegates appointed by the states to an Article V convention to propose amendments. With that in mind, it is worthwhile to examine the two dimensions of the American polity, the electoral and sovereign capacities of the people.
In the American Republic the people are entrusted by God and themselves to exercise two distinct duties. First, under the guidance of the Laws of Nature and Nature’s God, they are to craft and amend as necessary the supreme law of the land. Second, they are to participate per the directions given to themselves in the government of their design. The first involves the sovereign right and duty of We The People. In the second, individuals exercise their electoral right to appoint representatives to make statutory laws subject to the Constitution. The source of power for both is the same . . . yet different.
To illustrate, my home state of Florida has the dangerous yet constitutional habit of mixing legislative elections with constitutional referendums. On election day 2010, I was to mark on a single sheet of paper the local, state and congressional representatives of my choice, and likewise indicate whether or not I approved of a proposed state constitutional amendment that would prohibit the influence of politics in shaping Florida’s congressional districts. I am not kidding. Now, the constitutional referendum had nothing to do with self-government and everything with preventing the FL GOP legislative majority from designing congressional districts, and entrusting it to a reliably far-left state supreme court.
Of course, the referendum passed and is in the FL constitution. After each census, our legislature might as well send a tourist poster map of FL to the supreme court along with a few crayons for them to draw congressional districts as their social justice consciences direct. This isn’t republican government.
Florida voters were asked to simultaneously choose who and what, who was to make statutory law on their behalf, and what the supreme law of the state shall be. Florida isn’t alone; other states have similar constitutional provisions that ask the people, come election time, to both elect reps/senators/presidents as well as possibly amend the supreme law of their states, their constitutions. Appeal to the people to decide statutory or constitutional amendments is direct democracy, a practice suited perhaps for tiny city-states, but dangerous to republican free government. The people, in an electoral setting, are grossly unqualified and under-educated to be supreme law-givers. Most view their thumbs-up or thumbs-down answer to constitutional questions with the same gravity of answering simple poll questions over the phone. The exercise of so dissimilar duties should be kept distinct.
In their electoral capacity, the people choose representatives to craft statutes on their behalf. Representatives are limited by the supreme law of the land, the Constitution given by the sovereign people via delegates. Through statutory law-making, representatives determine that which is legal.
Through the exercise of the people’s sovereign capacity, delegates of the people craft or amend their governing institutions. When delegates of the sovereign people meet to amend the supreme earthly power, the Constitution, they are limited by the Laws of Nature and Nature’s God. They subsequently create governing institutions furnished with just powers.
The legal must comport with the just, as the just comports with the Laws of Nature and Nature’s God. In neither electoral nor sovereign capacities are the people to participate in person, to either craft statutes or ratify constitutions.
Just as a man may wear different hats, so too can he serve different roles for different ends. For instance, during the day he goes about his business to earn a living. Afterwards at home he is a husband and father. His different duties and perspectives shape his judgment. The judgment used in identifying the man or woman one wishes to represent them to make statutory law serves an entirely different function from the direction one offers to his legislator regarding the supreme law, the Constitution of his state or United States.
The source of power for both is the same . . . yet different.
Next: Electoral vs Sovereign Capacity: Where the Sovereign?
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