Thursday, 30 July 2009

James Wilson - 'We the People' and Sovereignty

Several years ago while performing a Google search on the subject of 'Popular Sovereignty' I came across a paper titled 'Popular Sovereignty and Constitutional Amendment' by Akhil REED AMAR. In that paper he writes -

'As Gordon Wood has written Wilson was the Federalists' pre-eminent popular sovereignty theorist; and it was his hand that first penned the bold first three words of the Constitution, "We the People".' - page 9.

Those words have intrigued me ever since reading them. I followed the relevant endnote to page 150 of Volume II of 'The RECORDS of the FEDERAL CONVENTION of 1787' edited by Max Farrand which gives the text of Document V in the COMMITTEE OF DETAIL, in particular the footnote on that page which reads as follows -

'Document V in Wilson's handwriting was found among the Wilson Papers. It appears to be the beginning of a draft with an outline of the continuation. Parts in parentheses were crossed out in the original.'

When James Wilson wrote those words what exactly did he mean by them? In the context of the Constitution of the United States they clearly refer to 'the people of the United States' but outwith it they are inclusive of ALL people throughout the world.

'...Wilson was at the front rank of the founders. He was also in touch with the future. "By adopting this system," Wilson explained in 1787, "we shall probably lay a foundation for erecting temples of liberty, in every part of the earth."'

SOURCE: 'Collected Works of James Wilson', Edited by Kermit L. Hall and Mark David Hall, Volume I, from 'COLLECTOR'S FOREWORD' by Maynard Garrison, ISBN 978-0-86597-686-3.

'For a' that, an' a' that,
It's coming yet for a' that,
That Man to Man, the world o'er,
Shall brithers be for a' that.'

- Robert Burns (1759-1796)

The phrase 'we the people' is often used nowadays as a 'soundbite', whether it be political or not, but as used in the Constitution of the United States 'We the People' clearly indicates the locus of sovereignty - despite the fact that the word 'sovereignty' is not to be found anywhere in it. While a legislature may be regarded as being sovereign in an international sense, a genuinely democratic legislature, however, can ONLY act on BEHALF of the sovereign people and is therefore NOT sovereign in itself.

'I had occasion, on a former day, to mention that the leading principle in the politics, and that which pervades the American constitutions, is, that the supreme power resides in the people. This Constitution...opens with a solemn and practical recognition of that principle:- "We, the people of the United States, in order to form a more perfect union, establish justice, &c., do ordain and establish this Constitution for the United States of America." It is announced in their name - it receives its political existence from their authority: they ordain and establish.' - page 193,

'When the principle is once settled that the people are the source of authority, the consequence is, that they may take from the subordinate governments powers with which they have hitherto trusted them, and place those powers in the general government, if it is thought that there they will be productive of more good. They can distribute one portion of power to the more contracted circle, called state governments; they can also furnish another proportion to the government of the United States. Who will undertake to say, as a state officer, that the people may not give to the general government what powers, and for what purposes, they please? How comes it, sir, that these state governments dictate to their superiors - to the majesty of the people? When I say the majesty of the people, I mean the thing, and not a mere compliment to them.' - page 202,

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Remarks in Pennsylvania Ratification Convention.

That means that anything which comes after the words 'We the People' in the Constitution of the United States, and contradicts them, no matter how remotely, is unconstitutional.

Dual Sovereignty

The concept of dual sovereignty, as advocated by James Wilson, has been confused with the division of powers at the State and Federal levels. What Wilson meant was that as ONLY the people are sovereign at ALL times it is for them to decide how they wish the powers that come with that sovereignty to be put into effect.

'Wilson also advocated for federalism and the related concept of dual sovereignty. Since the people were the foundation of all government, they could construct as many levels of authority as they wished. Thus, the people could not only establish a national government of enumerated powers but simultaneously lend their support to state governments vested with the traditional police powers of health, safety, morals and welfare.'

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Introduction, pp. xix-xx,

'The secret is now disclosed, and it is discovered to be a dread, that the boasted state sovereignties will, under this system, be disrobed of part of their power...let me ask one important question. Upon what principle is it contended that the sovereign power resides in the state governments? The honourable gentleman has said truly, that there can be no subordinate authority. Now, if there cannot, my position is, that the sovereignty resides in the people.' - page 201,

'The very manner of introducing this constitution, by the recognition of the authority of the people, is said to change the principle of the present confederation, and to introduce a consolidating and absorbing government.

In this confederated republic, the sovereignty of the states, it is said, is not preserved. We are told, that there cannot be two sovereign powers, and that a subordinate authority is no sovereignty...I stated further, that if the question was asked, some politicians who had not considered the subject with sufficient accuracy, where the supreme power resided in our governments, he would answer, that it was vested in the state constitutions. This opinion approaches near the truth, but does not reach it; for the truth is that the supreme, absolute, and uncontrollable authority remains with the people.' - page 213,

'I consider the people of the United States as forming one great community; and I consider the people of the different states as forming communities, again, on a lesser scale. From this great division of the people into distinct communities, it will be found necessary that different proportions of legislative powers should be given to the governments, according to the nature, number, and magnitude of their objects.

Unless the people are considered in these two views, we shall never be able to understand the principle on which this system was constructed. I view the states as made for the people, as well as by them, and not the people as made for the states; the people, therefore, have a right, whilst enjoying the undeniable powers of society, to form either a general government, or state governments, in what manner they please, or to accommodate them to one another, and by this means preserve them all.' - page 214,

'State sovereignty, as it is called, is far from being able to support its weight. Nothing less than the authority of the people could either support it or give it efficacy.' - page 215,

'Permit me to proceed to what I deem another excellency of this system: all authority, of every kind, is derived by REPRESENTATION from the PEOPLE, and the DEMOCRATIC principle is carried into every part of the government.' - page 238,

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Remarks in Pennsylvania Ratification Convention.

Eleventh Amendment

The passing of the Eleventh Amendment, following Chisholm v State of Georgia, was a reaction to the realisation by a minority who currently held office that they could no longer manipulate matters for their own narrow interest. What the Eleventh Amendment did was to create a mechanism which State governments and their 'tentacles' could hide behind, in certain circumstances, to avoid their responsibility.

'The result was the speedy ratification in 1795 of the Eleventh Amendment...This rebuke of Wilson was particularly poignant since in the constitutional convention he had urged the principal of dual sovereignty. Put to the test on the bench, however, Wilson discovered that his views on the sovereignty of the people had less support than he supposed, at least when that sovereignty trumped state authority.'

SOURCE: 'Collected Works of James Wilson', Kermit L. Hall and Mark David Hall, Volume I, Introduction, page xxii,

'...Nowhere in the entire document are the states identified as sovereigns.

The claim that the sovereignty of the states is constitutional rests on an audacious addition to the eleventh amendment, a pretense that it incorporates the idea of state sovereignty. Neither the text nor the legislative history of the amendment supports this claim, nor does an appeal to the history contemporaneous with the amendment...

Sovereignty in the classic sense was indivisible. Apparently such a concept of the sovereign was in Holme's mind when he asserted that one cannot sue a sovereign because that would put a sovereign above the sovereign. But not one of the fifty states, nor the United States itself, is such a sovereign.'

SOURCE: 'NARROWING THE NATION'S POWER' by John T. Noonan, Jr., pp. 151-152, ISBN 0-520-23574-6.

(John T. Noonan is a Senior Circuit Judge of the United States Court of Appeals for the Ninth Circuit.)

There are NO States Rights nor even Federal Rights - ONLY Peoples Rights.