Monday, May 1, 2017
The People, the Sovereignty
§104. The people: Identity.
In the United States the people are brought on the stage as an acting political entity, acting, it is true, always through representatives. As expressed by Wilson, one of the signers of the Declaration of Independence: "In free states the people form an artificial person or body politic, the highest and noblest that can be known" (1). By "the people" of a state is meant all of the members which compose that state and are integral parts of it, together making a body politic (2). "The people as a corporate unit form an artificial per son or body politic; thus constituted they form a moral person" (3). "It is this person we call a state" (4). "There is no distinction between the people and the state" (5). It must not be forgotten that, in using the expression "the people," there is a distinction between the population of the nation, as individuals, and the same population organized under a constitution. By "the people," in this connection, we intend a body politic, a corporate unity. Because of the quality of singleness we may properly use the pronoun "it," though, this is not usual. It is hard for the citizen to lose sight of the individuals in the body ; but correctly viewed, as drops of water lose their forms as drops when they mingle with the whole and become not drops, but one body, even so the citizen in his political capacity loses the civil capacity of an individual when viewed as a part of that great unit "the people." It is the whole mass, and not a majority of the individuals composing it, which constitutes the people, and the people are to be regarded, not as an unorganized mob, but as a corporate unity composing a society (6). There are dicta to the effect that the people, when spoken of in the political sense, means only those persons having the right to vote, that is, the electors ; and it is at the same time said that in the electors is vested the sovereignty (7). Thus stated, the idea does not, as we shall see, properly obtain, and is contrary to the principles of American institutions (8). Voters are but parts of the machinery of government (9). In the constitution "the people" is sometimes used to indicate persons or individuals. So in all provisions in reference to unreasonable seizures and searches. In such provision it is identical with the use in Blackstone.
According to the doctrines of political law as they obtained in England, the action of the colonists, as evidenced by the Declaration of Independence, reduced the individuals who inhabited the colonies to a state of nature; for, says Blackstone, "when civil society is once formed, government at the same time results of course, as necessary to preserve and keep that society in order. Unless some superior be constituted whose commands and decisions all the members are bound to obey, they would still remain in a state of nature without any judge upon earth to define their several rights and redress their several wrongs. But as all members which compose this society were naturally equal, it may be asked, in whose hands are the reins of government to be intrusted?" (34).
§ 113. The declaration of equality destroyed personal sovereignty.
Here it is that the learned commentator con founds society with government, and very naturally ; for with him the parliament is the great body politic, the state, and also the government, and the people are no more, no less, than individual subjects (35). It is evident that the framers of the Declaration of In dependence did not acquiesce in the view that such acts repealed all their laws; for while they deny the powers of parliament over them upon the ground that they are not represented, and declare that the crown has abdicated the government, they do not admit that their laws are repealed (36). It was a well known rule that a change in form of gov ernment, or in the persons who exercise it, does not re peal existing laws (37). At the time of the Declaration of Independence the colonists affirmed that they had existing among them what they had brought with them, developed and possessed as their birthright, the common law of England, which they contended was founded upon two ancient pillars— consent and representation (38). Throughout all their subse quent acts and doings they professed to observe the prin ciple that all authority was derived from the people they represented, either expressly given or impliedly ratified (39), thus extending any idea of the supremacy of any person or class over the whole mass or any member thereof, and they did not agree that because there were no inequalities of rank nor any orders of nobility they were and must remain without laws (40). It must be confessed that they stood as Englishmen never stood be fore—equals in rank, equals in right.
§ 121. The right of expatriation allows the constant exercise of assent or dissent.
"Very plainly, then, it is essential to the American doctrine of consent to hold that every citizen shall have a right at any time to expatriate himself (70). How can the consent of the governed be in any sense implied if the citizen is coerced to remain a member of the state through all the changes which its form of government may undergo, whether with or with out his approbation (that would be submission). It is clear that in any such case he may remove himself and his property to any country he chooses, and he must be allowed reasonable time to make his election. This course was adopted at all periods of the American Revolution. All persons, whether natives or inhabitants, were considered entitled to make their choice either to remain subjects of the British crown or to become citizens of one or other of the United States. This choice was necessarily to be made within a reasonable time" (71). The majority of a colony, upon assuming to be an in dependent state, did not assume, against the will of the minority of the inhabitants, the right to make them members of the state. In order, therefore, to make such per sons members of the state, there must be some overt act of consent on their own part to assume such a character, and then, and then only, could they be deemed to have determined their right of election. The consent of each individual could in no other mode be practically ascertained (72)..
§ 126. The relation of the people, the states and minorities.
It is often said that the people are sovereign,— that is, the whole mass is sovereign because they created the constitution; and it is asked, Is not the creator sovereign to the creature? But the people of the old confederacy did not act en masse or as citizens of one great body politic in creating the constitution (87). Rhode Island never participated in the constitutional convention, and North Carolina did not ratify until long after nine states had ratified. Confusion about this question arises from treat ing different things as the same thing because they are called by the same name. The political unity was created by the constitution, consisting of eleven states and the people thereof ; that is, the artificial person as we see it now, then came into being, and then, for the first time, were known citizens of the United States (88). The members of the old confederacy were states of the new nation, individuals and states. It is their universal consent to the terms of this instrument which creates the body politic called the United States.
§ 127. Republican form of government described.
In England government was based on sovereignty; here it is derived from citizenship. There obedience depended upon subjection ; here it depends upon consent.
§ 140. The method by which the people bound them selves.
"We may now safely affirm that the sovereignty of the people consisted in this : that being originally equal in rights and without any superior, they had a right to establish any form of government upon any terms they could agree upon. That without violating the ancient principle that government derived its just powers from the consent of the governed, no majority had the right to coerce the minority. Second. That it was competent for them, by the terms of the constitution, to agree upon the manner in which all power should be exercised, and that all jointly, or any portion of them, should have no right to change the fundamental law in any manner other than by the modes therein provided (46). Third. That they did so agree and did set plain limitations upon the exercise of all power by themselves, as well as by those to whom they delegated the exercise of the government, and did agree upon the republican principle that the people cannot act en masse, but must act through representatives. That they, by their constitution, created the judicial power independent of and co ordinate with the legislative branch, and clothed with a power and duty unknown (47) to governments where sovereignty was recognized— namely : to declare null and void any acts of the people, whether exercised through their electors or by the legislatures, or the executive, or by all combined, which contravene the fundamental law; and finally, they have declared the constitution to be the supreme law of the land, and binding upon all individuals, bodies politic, magistrates or agents (48).
§ 142. The fundamental principles of self-government.
But one conclusion can be drawn from the facts surround ing the institution of this government and the experience of the century upon the question of the nature of the power of legislation, whether in the people or elsewhere, and in relation to the nature of law and the doctrine of unlimited power. The result is the destruction of personal sovereignty in the many or the few, and the substitution of the obligation of consent as the vital principle of law. "Whether it consists in the plighled faith of the nation by way of treaty, the behest or limitation of a constitution, a statute duly enacted, or a system universally adopted, they are all, in truth and form, of the people, by the people, for the people,— the actual application of the theory of self-government.