We the deputies

The notion of popular sovereignty is old, older than the modern vote. When the Pope crowned Charlemagne emperor in 800 CE, for instance, he said that he “merely declared and exercised the people’s will.”1 But just as popular sovereignty was beginning to “imply the enfranchisement of the people,”2 the seceding Southern states ratified a constitution that opened with “We, the deputies of the sovereign and independent states.”3 Lincoln pointed to this language in his July 4, 1961 address to Congress, his unofficial declaration of war against the seceding states: “Why? Why this deliberate pressing out of view, the rights of men, and the authority of the people?”4

Pope Leo III crowns Charlemagne
Pope Leo III crowns Charlemagne

It’s a fair question. If European rulers were claiming the people’s mandate before the modern vote existed, why was it so hard for the South to mimic the famous opening to the United States Constitution, “We, the people”?

The division between state sovereignty and popular sovereignty was evident even while our Constitution was being debated and ratified in the late 1780’s. At Virginia’s ratification convention, Patrick Henry argued that the proposed constitution’s “We, the people” opening was error because sovereignty rested in the states, not the people. In her book Ratification: The People Debate the Constitution, 1787 – 1788, Pauline Maier summarizes part of Henry’s argument: “The people in their collective capacity were not the proper agents for entering leagues, alliances, or confederations; that was the work of ‘states and sovereign powers.’” Henry didn’t believe that the “people in their collective capacity” were sovereign.5

Henry’s argument against people’s sovereignty may have been associated with another argument he advanced, this one outside of the Richmond convention, against the proposed constitution: “They’ll free your niggers.”6 (Like John Randolph of Roanoke and John Calhoun after him, the author of Virginia’s famous “Liberty or Death” speech believed in liberty without equality.7) As Lincoln pointed out, the doctrine of state sovereignty was inimical to the rights of men.

Lincoln understood that the state sovereignty claim, cited by Henry, was the philosophical basis of the South’s secession. In his July 4, 1861 address to Congress, Lincoln described how, from an historical perspective, the states didn’t make the Union; instead, the Union made the thirteen colonies into states. Consequently, the states have no power – even no political existence – outside of that Union. The Constitution merely reserves to the states what is inherently local: “whatever concerns only the State, should be left exclusively, to the State” (emphasis original). While Lincoln accepted this limited definition of states’ rights, he demolished, in a lawyerlike manner, the notion of “state sovereignty.”8

Political scientist Harry V. Jaffa, founder of the conservative Claremont Institute, points out that the Revolutionary colonial assemblies declared union with one another and independence from Great Britain at the same time, and most of those declarations proclaimed the rights of man in language similar to the Declaration of Independence’s statement of inalienable rights. Their instructions to their delegates to the Continental Congress all contained but a single qualification: the new states would reserve police powers. “Thus [the new states] could, euphemistically, be called sovereign, but only in this limited sense,” Jaffa argues. He points out that each of the nine prohibitions on the states in the Constitution’s first article – “for example, the denial of the right to coin money – is a denial of a power regarded as an attribute of sovereignty by international law.” 9 This limited, “police power” notion of states’ rights grew to full sovereignty precisely when states’ rights were no longer associated with natural rights. Jaffa again: “The state rights that allegedly justified the ordinances of secession of 1860 – 61, and which served as the foundation of the Confederacy, had severed the connection with natural rights that had informed the generation of the Revolution.” 10

The Constitution’s ratification and the North’s successful prosecution of the Civil War were victories for popular sovereignty and aided the gradual movement to universal suffrage. They also established the falsity of today’s claims for state sovereignty and to a right of secession. States have “rights” to the extent of their police powers, but they are not, nor have they ever been, sovereign.11

  1. Lippmann, Walter. The Public Philosophy. Boston: Little, Brown, 1955. Print. Pages 37-38.
  2. Id. at 37.
  3. Lincoln, Abraham, Mario Matthew. Cuomo, and Harold Holzer. Lincoln on Democracy: His Own Words, with Essays by America’s Foremost Historians. New York: HarperCollins, 1991. Print. Page 220.
  4. Id. at 223.
  5. Maier, Pauline. Ratification: The People Debate the Constitution, 1787-1788. New York: Simon & Schuster, 2010. Print. Page 264.
  6. Smith, Jean Edward. John Marshall: Definer of a Nation. New York: Holt, 1996. Print. Page 119.
  7. See my post “Liberty and inequality.”
  8. Lincoln, supra, at 220 – 221.
  9. Jaffa, Harry V. A New Birth of Freedom: Abraham Lincoln and the Coming of the Civil War. Lanham, MD: Rowman & Littlefield, 2000. Print. Pages 373 – 374.
  10. Id. at 251.
  11. Texas is an exception, of course: it was once a sovereign state. But as Lincoln pointed out in his July 4, 1861 address, “even Texas gave up the character on coming into the Union; by which act, she acknowledged the Constitution of the United States . . . to be, for her, the supreme law of the land.” Lincoln, supra, at 220.

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