Guest Essayist: Joerg Knipprath


Two noted maxims of Roman constitutional law contained in the code of Justinian’s 6th century Corpus Juris were, “What pleases the prince is law,” and, “The prince is not bound by the law.” These are classic expressions of sovereignty. They locate the ultimate power and authority to make and enforce law in one identifiable person. They reflect the full imperium of the Roman emperor and create a contrast with the earlier Roman republic, when a similarly complete dominance was exercised only outside the city, by proconsuls in the provinces.

Yet there was another maxim in the Corpus, “What touches all must be consented to by all.” This suggests that the ultimate authority rests not in the governor, but in the governed. In the Roman republic, actions were taken in the name of the Senate and People of Rome. That idea was symbolized by the SPQR (Senatus Populusque Romanus) which was prominently displayed even on the standards of the imperial Roman legions. There is an obvious tension between these maxims. One might locate in that tension the beginning in Western political thought of the lengthy and ongoing debate over the nature of sovereignty.

One of the most influential expositors of the concept was the 16th century French jurist Jean Bodin. In his Six Livres de la République (Six Books of the Commonwealth), published in 1576, Bodin defines sovereignty as the power to make law. Political society, like other human organizations, is hierarchical. Someone must make the rules. Thus, sovereignty must exist as a precondition for a state. Sovereignty, Bodin insists, must be indivisible. And it must be ultimate and absolute. While his preferred sovereign is a monarch, that is not requisite. As a student of the classics, he asserts that all political constitutions are monarchic, aristocratic, or democratic. As a man of the Renaissance, he believes in scientific epistemology. But, before one can effectively study a country’s laws, one must know the source of those laws, which is in one identifiable man or body of men.

The appeal of such a theory to a strong ruler is clear, and there were few rulers of the early modern period as absolute in power and self-assured of his sovereignty as Louis XIV of France. The “Sun King” ruled from 1643 to 1715, said to be the longest recorded of any monarch in history, although during his minority France was governed under the regency of his mother, Queen Anne. He took over sole rule in 1661, after the death of his chief minister, the political and diplomatic virtuoso Cardinal Mazarin who had been the de facto ruler of France for a couple of decades. Louis’s famous dictum, “L’état, c’est moi” (“I am the State”), may well be apocryphal, but it summarizes his view of government.

Louis certainly was not alone in that regard. The Early Modern Period saw the rise of the nation-state and, as an essential component, the absolute monarch ruling by divine right. By the reasoning of various defenders of the new order, an absolute monarch as sovereign was as natural as the rule by the paterfamilias over the family and the rule of the pope over the community of believers. While Martin Luther and other early Protestant leaders might challenge the second analogy, they had no problem with the bigger point. On its way out was the old divided feudal structure, based on personal covenants of fealty, with power divided between popes and emperors, emperors and nobles, and nobles and freeholders. The conflict between King John and the nobles at Runnymede, which culminated in the Magna Carta of 1215, was an anachronism. More representative of the new order of things was King Henry VIII’s campaign of arrest and execution of English noblemen and seizure of noble estates. In similar manner, the walk by Emperor Henry IV over the wintry Alps in 1077 to Canossa to beg forgiveness from Pope Gregory VII and have his excommunication lifted, would be seen as rather odd. Instead, there was that same King Henry VIII first making himself head of the Catholic Church in England and, soon thereafter, head of the new Church of England.

Historians have speculated about the many possible causes of the rise of the modern nation-state. It is difficult to pinpoint any one cause, or even to distinguish between causes and symptoms. Was it the increased sophistication of weaponry and the changed structure of military operations, which eroded the relative equality of power among various nobles because of the greater expense of the new technologies and the larger armies drawn from commoners? Was it the growing influence of commerce due initially to the greater affluence and stability of society in the 12th and 13th centuries and then, ironically, to the economic recovery in the 15th century after the prior century’s population collapse from pestilence and famine due to the colder climate of the Little Ice Age? Was it the result of the decimation of the nobility due to the many wars among nobles, such as that between the House of York and the House of Lancaster in the English War of the Roses in the 15th century? Was it the European expansion and exploration in the Age of Discovery, enabled by European technological superiority, the expense of which could only be undertaken by comparatively large states and which, in turn, brought great wealth to their rulers? Was it simply, as Niccolo Machiavelli might declare, due to Fortuna and the virtu of dynamic statesmen with which a particular political entity was favored?

Whatever the reason, every ruler, it seemed, wanted to be what Louis XIV became. Timing was not uniform. England under the Tudors became the domain of an absolute monarch a few generations before France did, but also lost that status well before France did. The German princes operated on a smaller scale and were well behind France in their pretensions to absolute rule; indeed, the Holy Roman Empire never coalesced into a nation-state. But the common thread for these rulers, other than in various city states and in a few oddities such as the Holy Roman Empire, the Swiss Confederacy, and the United Provinces of the Netherlands, was that they claimed to exercise full sovereignty in fact.

The existence of the aforementioned oddities presented a problem for theorists such as Bodin. The confederated natures of such realms and their distributions of power among various political organs vexed him. His solution was simple. He either just assigned such divided governments to a pure system or declared them not to be true states. Thus, he characterized the intricate constitution of the Roman Republic as a democracy. The Holy Roman Empire, with its imperium in imperio, that is, a purported dual sovereignty, was not really a state, but a chimera of one.

Along with Bodin, another influential author of the doctrine of sovereignty was the 17th-century English philosopher Thomas Hobbes, whose major work on the topic was Leviathan. As Bodin had done, Hobbes declares sovereignty to be indivisible and absolute. But Hobbes goes further. His approach is more pragmatic and more rigorous than Bodin’s. Hobbes analyzes sovereignty less in terms of authority to make law, but rather in the ruler’s power to coerce others. That is the essence of the old Roman imperium, to command. For Hobbes, the sovereign’s legitimacy arises from the consent of the governed rooted in the social contract. That contract results from the human psychological need for peace. Mankind’s desire for survival impels humans to escape the brutal Hobbesian state of nature with its war of all against all. Human nature is both rational and self-interested. Hence, humans seek the safety of the political commonwealth and the strength of its organized coercive power.

Hobbes’s view of the relationship between subject and ruler is best described as covenantal, and his reference to an Old Testament creature is not coincidental. There is no equality of bargaining and equality of relationship as in a typical contract. The subject agrees to obey unconditionally, and the ruler provides protection and peace. To do that, the ruler must have unquestioned power to bend all persons and all institutions to his rule. The sovereign can act in accordance with established law or contrary to it. Church-state divisions are no longer an issue. The secular sovereign controls the ecclesiastical bodies, as Henry VIII controlled the church. It need hardly be added that a divided state or a system of distributed powers would be an abomination for Hobbes, as it would undermine the commonwealth’s stability and raise the likelihood of a return to the state of nature.

The Bodinian and Hobbesian approbation of undivided sovereignty in an absolute ruler sits rather ill at ease with certain assumptions about the American system. The drafters of the United States Constitution deliberately sought to create a system of balanced powers divided between the general government and the states and among several branches of the general government. The supporters of the Constitution frequently discussed the division between the general government and the states in terms of sovereignty, particularly the residual sovereignty of the states, in their efforts to assuage the concerns and blunt the criticisms of their opponents during the ratification debates. James Madison and others even argued that the Constitution was in many ways just a novel and workable modification of the confederal structure of the Articles of Confederation.

The Anti-federalists were not persuaded and, like Bodin and Hobbes, insisted that sovereignty was indivisible and that, within a union, imperium in imperio was impossible. Either the states were the sovereigns, as under the Articles of Confederation, or the general government was. While the framers may have attempted to “split the atom of sovereignty,” in the vivid words of Justice Anthony Kennedy, the effort was bound to fail. Either the states would control the general government or the latter would control the former. For the Anti-federalists, the teleological direction of the Constitution was clear: The general government would inevitably diminish the states to mere administrative appendages and become a tyranny.

This controversy over the nature of sovereignty in the Constitution has continued. Is there, indeed, an identifiable sovereign at all under the Constitution, with the split in authority among the legislative, executive, and judicial branches, as well as between the House of Representatives and the Senate? This does not even consider the role of what is, in the evaluation of some, the true sovereign: the wholly extraconstitutional vast bureaucracy with its essentially unreviewable combined rule-making and rule-enforcing power.

That question also leads to another controversy. To counteract the criticism that the Constitution was a path to oligarchic rule at best, and outright dictatorship at worst, the Constitution’s supporters made frequent references to the power of the people to participate in various political processes. In similar manner, there arose the claim that, in the United States, unlike even in Britain, “the people are sovereign.” In 1776, George Mason asserted in the Virginia Declaration of Rights, “That all power is vested in, and consequently derived from, the People; …” Although he also expressed caution about this principle, James Madison in Number 49 of The Federalist accepted Thomas Jefferson’s dictum that, “the people are the only legitimate fountain of power,” and acknowledged that, at least, in certain unexplained extraordinary matters, the people should decide directly.

But how do “the people” exercise indivisible and ultimate authority and power? Leave aside various inconvenient facts, such as the usual exclusion of large groups of “the people” from the political system, the often low fraction of eligible voters who actually participate, the ability of unelected bureaucracies or courts to frustrate the political decisions reached, and the dubious premise that “the people” have acted when the vote is, say, 51% in favor and 49% opposed. As the experience of ancient Athens and Rome shows, it is not possible for “the people” to gather in one place. As an interesting side note, modern technology makes such an event less implausible, but even with the capacities of a premium Zoom version, it might be difficult to get a couple of hundred million of “the people” to participate in policy-making. It is a far cry from an 18th-century New England town meeting, and even there, a majority assumes a power over a minority.

Moreover, aside from the Constitution’s optimistic reference to “We, the people of the United States,” every part of that document is about entities other than the people making laws and coercing individuals to obey those laws. Indeed, “the people” did not adopt the Constitution. Nor can they amend it. Technically, there is not even a guaranteed right in the document for “the people” to vote, as the states control the qualifications for voting in the first instance. True, here or there across the American constitutional landscape, one might spot an exemplar of popular sovereignty. Some states provide for direct participation by voting on ballot initiatives and referenda to make law, and there remain in some localities the afore-mentioned town meetings. One might even point to jury nullification as another example. But all of these are well outside the norm.

This dissonance between declarations of popular sovereignty and the reality of governments nevertheless has led some writers to try to reconcile them. Jean-Jacques Rousseau asserted that the people cannot act individually to legislate. Instead, their particular interests are collectivized and transformed rather mystically into the community’s “general will.” For Rousseau, the community is an actual, albeit incorporeal, entity with a will. That general will is expressed in laws through some legislative body. This seems to be a well-perfumed version of the Roman empire’s old constitutional sleight of hand that the people are the ultimate source of political authority but have ceded their sovereignty to the emperor.

Rather than resolve these tensions, one might distinguish between “theoretical sovereignty” and “practical sovereignty.” In a system whose claimed legitimacy is based on consent of the governed and which purports to base the legitimacy of its actions on some degree of popular participation, one might indeed posit a theoretical grounding on “the people” as the unlimited sovereign. The then-future Supreme Court justice James Wilson, a prominent lawyer and intellectual who signed the Declaration of Independence and the Constitution, wrote in his law lectures that a constitution originates from the authority of the people. “In their hands, it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please.” But that is not how government operates in practice. It is certainly not how the Constitution was adopted and how it has actually been amended.

Just as the high-minded assertion in the Declaration of Independence that “All men are created equal” states a Christian view of us all as God’s children or perhaps a still-aspirational secular equality before the law, “popular sovereignty” or “consent of the people” is a useful philosophic device to communicate the difference between a government and a bandit. It establishes a conceptual basis, perhaps a noble lie, for political obligation, that is, why one is obligated to obey the commands and coercions of the former, but not the latter.

The more difficult and practically relevant investigation is where in our constitutional system does the practical sovereignty lie. Who really governs, makes the rules, and coerces obedience? There indeed is no clear Bodinian sovereign in the Constitution’s formal dispersal of power. Despite Alexander Hamilton’s expansive views of executive power in The Federalist and his subsequent Pacificus letters, the President’s constitutional powers fall well short of a monarch’s, as Hamilton wrote, as well. Even Louis XIV, despite his pretensions, found out that his word was not everyone’s command. He did ultimately acknowledge on his deathbed, “I depart, but the State shall always remain.”

Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.

 

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