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Sovereignty[index]

There is probably no legal term about which more has been written than "sovereignty." In a nutshell, "sovereignty" is the supreme, absolute and uncontrollable power by which any independent state is governed--the final source of all law.

In the United States, we have a President who administers laws--a powerful position, but not a sovereign. And we have a Congress that actually makes laws--also a powerful position, but not a sovereign. And we have courts that tell us what the laws say--another powerful position, but still no sovereign. We have the Constitution, which is, by its own terms, the "supreme law of the land." But this supreme law didn't make itself and can be changed, so it is no sovereign. Those who made the Constitution, those who can change it, are the sovereign in the United States: The people.

As described below, the framers of the United States Constitution had no intention of establishing any political system which we would recognize today as democratic. In 1787 the framers had many reservations about the political competence of the mass of the population. Even when Thomas Jefferson was elected President at the beginning of the nineteenth century, American conservatives solemnly predicted that his accession to power would enthrone the "swinish multitude" and put an end to public order and decency. On the other side were individuals such as Edmund Burke who observed that the people have no interest in disorder--when they do wrong, it is their error, and not their crime. When John Jay remarked that those who own the country should rule it, he was seeking a self-interest basis for rule by the people. When Thomas Jefferson suggested making land ownership easier, he was seeking a way to enlarge "the people."

In the end, the framers did not press their reservations. For example, the Preamble to the United States Constitution originally recited that the thirteen states were establishing the constitution, but when confronted with the problem that no one knew which states would ratify and which would not, the authors changed the Preamble to "We, the people of the United States...do ordain and establish this Constitution." Even in this setting, to proclaim that the fundamental law of the United States was made by the people was an enormous step toward self-governance and was probably as shocking to the conservatives of 1787 as were the doctrines of Karl Marx to conservatives a century and a half later. But the revolutionary language was retained, and the people won out as sovereign.

Well, almost sovereign. Even the people may not violate the natural law. Even 99 percent of the people lack the power to deny a person his or her natural rights and freedoms. Even if they amended the Constitution to do that, it would not be lawful. Because a person's natural rights existed before any man-made law. Otherwise we'd have democratic tyranny.

On the other hand, a person's natural rights must end somewhere, usually where another person's rights begin. This is why, as the world gets more crowded, the space for our individual rights shrinks. It is also why, as technology shrinks the size of the world, the space for our individual rights becomes more crowded. Except for overpopulation, the most significant threat to our natural rights and freedoms is not the Hitlers, Stalins and other despots, but technological breakthroughs and the bureaucracies that always accompany them.

Next - The Rise and Decline of Old Federalism

Previous - Natural Rights: The Seeds of Revolution

 


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