The State or the People: Who Is Sovereign?

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Recently by John Tyner: An Ounce of Prevention

     

A few months ago, I wrote an article about what I saw as the demise of the rule of law. In it, I used the Obama administration’s aggressive war against Libya to illustrate that the United States are no longer ruled by law(s). Instead, I argued that the federal government essentially does what it pleases because not only does it make the laws, it is also (solely) charged with enforcing them, and also with interpreting whether those laws are legal. (The legality of laws is a subject for another post.) I pointed to the U.S. Constitution as the source of authority for the federal government and also as the limit of that authority. However, as I’ve intimated in the past, and said outright in the “rule of law” post, the federal government has become the arbiter of its own power.

That post prompted a series of emails between a reader and myself about the nature of the federal and state governments, the U.S. Constitution, and sovereignty. The reader told me that the U.S. Constitution, in and of itself, was never meant to restrain the federal government. When one really stops to think about it, there’s no way that it could. As I pointed out above, the government makes, enforces, and determines the legality of the law(s); there’s nothing to stop it from doing whatever it wants. In addition, the U.S. Constitution doesn’t even grant any branch of the federal government the authority to carry out that last task. The Supreme Court arrogated that power unto itself in Marbury v. Madison, but I digress.

Instead, the reader contended that it was up to the states and the people of them to restrain the federal government. He continued, though, that the War Between the States essentially crushed that ability. The following Supreme Court case of Texas v. White declared the act of secession illegal. By declaring secession illegal, the federal government was basically declaring the states were not sovereign (any longer). These occurrences, in his view, were the real source of the demise of the rule of law, at least as I portrayed it in my writing. If the states are not sovereign, if the federal government is the supreme authority, then the 9th and 10th amendments to the U.S. Constitution were and are worthless.

Now, the notion that the states were independent, sovereign nations is not foreign to me. It has always been my understanding that the U.S. Constitution was not an act of the states giving up their sovereignty to create a central government but rather one of delegating some of their authority to the federal government in order to smooth and strengthen economic and/or foreign relations. The reason they delegated the authority is not important; what is important is that the authority was delegated, not relinquished. What was foreign to me was what this reader said next: [T]he people of each state are the state’s true ruling sovereigns [...] and all government was simply their delegated representatives, not appointed supreme sovereign rulers. Therefore, the People of a state could exercise their national sovereign authority, to overrule those delegates at any time—just like the King of England could overrule his ambassadors.

Until hearing this, my understanding of American government was that the states and/or the U.S. (as a whole) were sovereign nations, that the “government” was, collectively, its ruling sovereign, and that phrases like “of the people, by the people, and for the people” were simply figures of speech meant to convey the idea that there is no divine right to rule (i.e. no king or queen), that the people control the government (via the ballot box). This was the first time I had been introduced to the idea that the people, themselves, were the true ruling sovereigns. Tom Woods explains it quite succinctly:

In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

Where does this idea originate? Is it true? If so, how did I miss it? Since the aforementioned reader pointed to the War Between the States as ending state sovereignty, I started there. I already mentioned the case of Texas v. White in which the Supreme Court ruled that secession is illegal under the U.S. Constitution. I also came across a quote from Lincoln’s first inaugural address: The Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen States expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778. And finally, in 1787, one of the declared objects for ordaining and establishing the Constitution, was “to form a more perfect Union.”

This quote asserts the idea that the Union predates the U.S. Constitution but also gives rise to the idea that the states were created by a central government, not the other way around. The former is obviously true – the “union” existed in various iterations prior to the Constitution – but the latter has no basis in fact. In reality, the Articles of Association merely created a loose association by which the colonies (at the time) banded together to boycott British goods in retaliation for the Intolerable Acts. No central government was created by these articles. In fact, enforcement of the articles was left entirely up to the colonies themselves. Then, just prior to the Declaration of Independence, the Second Continental Congress recommended that the individual colonies “adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents”.

It’s probably worthwhile, at this point, to stop and look at a few of the constitutions drawn up by the colonies. New Hampshire: “The people of this state have the sole and exclusive right of governing themselves as a free, sovereign, and independent state”. Massachusetts: “The people of this commonwealth have the sole and exclusive right of governing themselves, as a free, sovereign, and independent state”. North Carolina: “All political power is vested in and derived from the people; all government of right originates from the people, is founded upon their will only [...] The people of this State have the inherent, sole, and exclusive right of regulating the internal government”. Virginia: “A DECLARATION OF RIGHTS made by the good people of Virginia in the exercise of their sovereign powers”.

All of the states’ constitutions of the time contain similar language. Even Hawaii, the last state admitted to the union, has very similar language in its constitution: “All political power of this State is inherent in the people and the responsibility for the exercise thereof rests with the people”. The point of this exercise is to demonstrate that 1.) the states predate any central/federal government, 2.) the states were independent, sovereign nations, unto themselves, and 3.) the people of the states were their sovereign rulers. These facts are recognized in other documents of the time. The Declaration of Independence: “We [...] solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States”. The Articles of Confederation: “Each state retains its sovereignty, freedom, and independence”. The Treaty of Paris in 1783: “His Brittanic Majesty acknowledges the said United States, [list omitted], to be free sovereign and independent states”. The 10th amendment to the U.S. Constitution which confirms that powers were delegated, not relinquished: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

In short, the states are sovereign nations, and according to their constitutions, the people are their sovereign rulers. I’ve pointed to a number of old documents confirming this, but here is something more recent. The Department of State lists (see page 289) the Treaty of Paris’ Article 1 (the article mentioned above) as still being in force as of January 1, 2010. Even the federal government, however obscurely, still recognizes that the states are sovereign. It is up to the people to (re)assert this sovereignty.

In light of the recent 60 Minutes report on CBS about Sovereign Citizens, it is worth noting that I am not now, nor have I ever been a member of the movement depicted in the report. While I obviously support the idea that the people of the United States are its/their rightful “rulers”, I don’t support support the violence perpetrated in the name of furthering this idea.

Reprinted with permission from Johnnyedge.

John Tyner [send him mail] is a software engineer in Southern California. He occasionally writes about economics, politics, and constitutional issues.

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