The Three Sovereignties

Recently, I was talking with a friend — very intelligent, not politically active, product of public & state-sponsored schools — who wanted to abolish the Electoral College.  He thought he should have a direct voice in the election of presidents.  He seems to operate, like so many others, under the idea that the United States is a democratic (small "d") country.  His misunderstanding of this issue is common, a misunderstanding of how the Union was formed, and how power was divided among the three sovereignties that comprise it.  In light of this discussion, which I've had many times with many people, I thought it profitable to examine those sovereignties.

1.  The People

From the Declaration of Independence [emphasis added]:

We hold these truths to be self-evident, that all men are . . . endowed by their Creator with certain unalienable Rights . . . That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government . . .

It wasn't, of course, a new idea – both the Greeks and the Romans tried it, as did others over the centuries – but no one ever described it more eloquently than Thomas Jefferson.  He states that man's freedom was given him by God, and, that governments are created to secure those fundamental freedoms.

Among the axioms Jefferson expressed was man's ultimate and absolute power over what he creates, because that creation always has a threat hanging over it – that if the creation doesn't meet the creator's expectations, the creator can recreate it.  The Articles of Confederation, ratified on 1 March 1781, clearly proved that threat had teeth behind it.  The confederation was a failure from about day two (day three at the latest) and though written to be "Articles of Confederation and perpetual Union," they lasted exactly seven years three months twenty days, until the Constitution was ratified on 21 June 1788.

In this new Constitution, the people gave to the federal government a portion of their sovereignty, a limited portion, as the Supreme Court made clear in the Legal Tender Cases 110 US 421 (1884) [emphasis added]:

But be that as it may, there is no such thing as a power of inherent sovereignty in the government of the United States.  It is a government of delegated powers, supreme within its prescribed sphere, but powerless outside of it.  In this country, sovereignty resides in the people, and Congress can exercise no power which they [the people] have not, by their [the people's] constitution, entrusted to it; all else is withheld.

Since the end of the Civil War, Americans who have been watching have seen the federal government expand its power far beyond those Constitutional limits.  Executive orders, agency regulations, congressional legislation, judicial activism and international treaties have sought to (and often succeeded in) usurping sovereignty away from the people of the United States.  The Tea Party and 9.12 movements, among others, were founded to re-exert popular sovereignty in the United States.  If these efforts fail, the generation now living will soon wake up to an America that has ceased to be theirs.

2.  The States

Again, from the Declaration of Independence:

We, therefore, the representatives of the United States of America . . . do, in the name, and by the authority of the good people of these colonies, solemnly publish and declare, that these united colonies are, and of right ought to be free and independent states; that they are absolved from all allegiance to the British Crown, and that all political connection between them and the state of Great Britain, is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.

Perceive ye the plethora of plurals in that passage (and my clever alliteration)?  The Declaration of Independence did not create a new nation; it created thirteen new nations, each with its own history, laws and customs.  Virginia and Massachusetts, the oldest, were over 150 years old by then, while Georgia, the youngest, was just past 40.  The terms of the Articles of Confederation; the rough, sometimes hostile, relations between the States; the intense debate over the draft constitution make it clear that the States considered themselves independent nations and that they intended to guard their sovereignty.

In the 10th Article of Amendment, this principle was repeated, "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."

That amendment does not specifically declare the States to be sovereign, probably because this was clearly understood by most of the people of the time.  To the few, James Madison, in his famous defense of the proposed Constitution (The Federalist, #45) made it clear that " the States will retain, under the proposed Constitution, a very extensive portion of active sovereignty . . ." [emphasis added].

So, what happened?  In an article at a Library of Congress website (ourdocuments.gov) entitled "17th Amendment to the U.S. Constitution:  Direct Election of U.S. Senators (1913)":

Late in the 19th century, some state legislatures deadlocked over the election of a senator when different parties controlled different houses, and Senate vacancies could last months or years. In other cases, special interests or political machines gained control over the state legislature. Progressive reformers dismissed individuals elected by such legislatures as puppets and the Senate as a "millionaire’s club" serving powerful private interests [emphasis added].

If Progressives dismiss it, it is definitely worthy of attention by Conservatives, because, I think that was almost the Founders' plan.  Not that senators should be puppets of the State legislature, but that they should represent directly and fully their state governments, under threat of forced retirement, or, in some cases, immediate recall by said state legislatures, as was allowed by the Articles of Confederation, Article V, "with a power reserved to each State to recall its delegates, or any of them, at any time within the year, and to send others in their stead for the remainder of the year . . ."  (A provision, in the opinion of this pundit, that should have been retained in the Constitution.)

I will not say there was no truth to the Progressives' accusation; some senators in the late 19th Century were pawns of special interests.  But that was the fault of the people who elected state legislators who were pawns of special interests, and it remains a problem today.  In fact, it is among the most common charges against senators who must raise millions of dollars to fund statewide campaigns.  Where do they get those millions?  From special interest groups.

So, did this change away from the original intent of the Founders solve the problem?  Many, me included, would argue that it has made a bad problem worse.  Not only have we failed to solve the problem that the 17th Article of Amendment was supposed to solve, but the sovereignty of the several States was eroded when they lost their voice at the federal level, and with it went the State's ability to push back against the federal expansion of power.

Encroachment on State sovereignty by federal agencies continues.  In response, the Patrick Henry Caucus was organized by members of the Utah legislature and grew, almost overnight, into a nationwide organization.  The Tenth Amendment Center was formed as a national think tank devoted to state & individual sovereignty and decentralization of federal power.  The States, meaning the people, let this happen.  Now, the States, meaning the people, must reverse it.

3.  The Union

Like me, you have probably heard the famous story from John Adams.  While serving as minister to the United Kingdom, Adams had a less-than-happy relationship with British Foreign Secretary William Pitt (the Younger), the Marquess of Camarthen.  On one occasion, Lord Camarthen is reported to have said, "Shall I appoint to America one ambassador or thirteen?"

My study of history shows me that the original States knew they were too small to stand alone.  Vermont, for example, declared a separate independence in 1777, and tried life as independent nation, but failed.  They failed so miserably that the great patriot Ethan Allen actually suggested Vermont rejoin the British Empire, an act which made him something of a pariah among his neighbors.  Fortunately, Vermonters chose to become one the United States instead.

I think Article III of the Confederation makes the point perfectly:

The said States hereby severally enter into a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.

They had won, by the skin of their teeth, a war against the military superpower of the age.  They probably assumed the British Army was stinging from their defeat and the Redcoats wanted to regain lost face or honor or whatever by retaking what they had lost.  (The Founding Fathers would have been fools not to make this assumption.)  Additionally, in Article VI we read:

No State, without the consent of the United States in Congress assembled, shall send any embassy to, or receive any embassy from, or enter into any conference, agreement, alliance or treaty with any King, Prince or State; . . . No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies . . .

The power to make war must walk hand in hand with the power to make peace, and so, diplomacy was entrusted to the Confederation.  In fact, over 1,300 words of the 3,800-word articles refer to war and diplomacy.

Among other major points were disputes between the States (which were many); the coinage of money (variations in specie were ruining the American economy and bank notes were seldom valid outside the town or city in which they were printed).

In short, the Founding Fathers were willing to grant their confederation government only those functions they deemed absolutely essential to operating as a group.  Unfortunately, they were wrong; they gave the Confederation too little power.  So, the States met to fix the problem, and gave additional powers to the federal government, but, again, to regulate only those matters they felt were essential.

A chief executive is one of the government operations the Articles of Confederation did not address.  There was a head of government (the president of the United States in Congress Assembled), but not a head of state — each state had its own president or governor.  From this situation sprang Lord Camarthen's snide remark.  The United States needed a "national" sovereignty so they could deal with a political/diplomatic world that had no concept of a "United Nations."

Article I gave responsibility for foreign affairs (except for ratifying treaties) to the President.  Therefore, the President is elected by the several States to represent the Union to the world as head of state.  (You were wondering how all this tied into that discussion I had with my friend, weren't you?  This is it.)  The several States had a voice the Senate; the people had a voice the House; the voice of the Union would be the President.

The power this national sovereignty does not have is power to delegate any of that sovereignty to other nations, groups of nations or supra-national entities.  George Washington warned us, "It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements."  Pres. Washington understood the necessity of treaties with other nations, but also forewarned that alliances could also work against us.  The United Nations, now populated mostly by countries which don't like the United States, is the prime example of this threat, with international courts, programs advocating gun control and world-wide global warming fixes.  None of these are in the best interest of the United States, and all must be resisted as long as they pose a threat to US sovereignty.

Conclusion:

Sovereignty, ultimately, derives from the people, in the form of State governments and the federal government.  So long as the people allow unscrupulous persons to hold political power, abuses will continue.  Many have said, "All politics is local," and this pundit must agree.  Grassroots efforts created the United States.  During the 2010 election cycle, voter-based initiative caused a fundamental shift in the federal power structure.  During the 2012 election cycle, true conservatism can become the reigning political philosophy of the Union and the several States if "We, the People . . . do ordain and establish" it.  That is the goal to which all true patriots aspire and are working.

Thanks for listening, tune in next week for another rant.