Article V and the Question of Sovereignty Part III

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Subtitle: Sovereignty on the Move

Sovereignty is absolute. Notwithstanding the Laws of Nature and Nature’s God, a person or body is the legal sovereign when he or it has unlimited law-making power, when there is no person or body superior to him or it. During America’s colonial period, a single body, the King-in-Parliament (or equivalently, Parliament) was the legal sovereign. 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.

The concept of legal and political sovereignty entrusted to state legislatures was generally accepted during the Revolutionary War. As per the Declaration of Independence, just government requires the consent of the people. Since every state held annual elections to its lower house, representatives were very close to the people. Thus, the logic went, the people temporarily delegated their legal and political sovereignty to men removable from office on an annual basis. What could be safer?

Well, property wasn’t very safe in the 1780s. Without going into detail here, the reader can get a feel for the problems of the times from two sources. One is James Madison’s Vices of the Political System of the United States, and another is from Article I § 10 of the Constitution. Section 10 doesn’t just itemize what states could no longer do, much of it itemizes what the states had done, which, when multiplied thirteen times contributed to the tumult and precariousness of the era.

Central to the turmoil of the 1780s was the continual assault by the people-at-large on the legislative and political sovereignty of the states. Since the Declaration recognized the right of the people to organize a government, “as to them shall seem most likely to effect their safety and happiness,” many believed their representatives should be mere tools who were to do as they were told through binding instructions issued by various informal parties and assemblies of the people. Confusion reigned over the fuzzy distinction between power being derived from the people, and being seated in the people. Representatives were bombarded with contradictory orders from disaffected groups. They were often not allowed to consider arguments made and developed in open debate. Local interests are just that and often denied everyone the general good. Americans did not understand the proper role and duty of a representative. As legislators attempted to do the impossible, satisfy everyone, representative government was slipping toward dangerous direct democracy.

If sufficient power to control the officers of government was not seated in the people, the Revolution was meaningless. But, if there is no bound to the legislative power, republican government soon becomes oligarchic.

Either the people or their representatives are legally and politically sovereign. If Americans in the 1780s were forced to choose between their legislatures and the people-at-large as the repository of their sovereignty, just as they had been forced in the early seventies to choose between the King-in-Parliament and their colonial legislatures, there could be no doubt now, as there had been no doubt then, where they would place the final supreme power. It was time, once again, to examine and relocate either or both the legal and political sovereignty of the state legislatures.

Ultimately, our Revolutionary principles trumped supreme lawmaking, legal sovereignty in state legislatures. No set of men, annually chosen or not, could set themselves up against the general voice of the people. Americans were not simply making the people a nebulous source of all authority. The 1780s development of extra-legal conventions, and detailed instructions to representatives, gave coherence and reality to the hackneyed phrase, the sovereignty of the people.

Somehow, the community, through some institution, must remain the supreme legal authority, the legal sovereign, without interfering in the political sovereignty of state legislatures. In Part IV, we’ll see how the Constitution solved the inevitable problems caused by coincident legal and political sovereignty.

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.

Wood, G. S. (1969). The Creation of the American Republic 1776-1787. Chapel Hill: The University of North Carolina Press.