Front Page Titles (by Subject) SECTION 3.: SOVEREIGNTY. - Construction Construed and Constitutions Vindicated
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SECTION 3.: SOVEREIGNTY. - John Taylor, Construction Construed and Constitutions Vindicated 
Construction Construed and Constitutions Vindicated (Richmond: Shepherd and Pollard, 1820).
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I do not know how it has happened, that this word has crept into our political dialect, unless it be that mankind prefer mystery to knowledge; and that governments love obscurity better than specification. The unknown powers of sovereignty and supremacy may be relished, because they tickle the mind with hopes and fears; just as we indulge the taste with Cayenne pepper, though it disorders the health, and finally destroys the body. Governments delight in a power to administer the palatable drugs of exclusive privileges and pecuniary gifts; and selfishness is willing enough to receive them; and this mutual pleasure may possibly have suggested the ingenious stratagem, for neutralizing constitutional restrictions by a single word, as a new chymical ingredient will often change the effects of a great mass of other matters.
Neither the declaration of independence, nor the federal constitution, nor the constitution of any single state, uses this equivocal and illimitable word. The first declares the colonies “to be free and independent states.” The second is ordained to “secure the blessings of liberty to ourselves and our posterity:” And the rest recognize governments as “the servants of the people.” In none, is there the least intimation of a sovereign power; and in all, conventional powers are divided, limited and restrained. There is, I believe, an instance in a bill of rights, in which a state is declared “to be free, sovereign and independent.” But it was the state and not its government which was the object of this declaration; and the reference was to other nations. The language of all these sacred, civil authorities, is carefully chastened of a word, at discord with their purpose of imposing restrictions upon governments, by the natural right of mankind to establish societies for themselves. It could not be correctly used as a vehicle of power, either external or internal. The idea of investing servants with sovereignty, and that of investing ourselves with a sovereignty over other nations, were equally preposterous. Sovereignty implies superiority and subordination. It was therefore inapplicable to a case of equality, and more so to the subordinate power in reference to its creator. The word being rejected by our constitutions, cannot be correctly adopted for their construction; because, if this unanimous rejection arose from its unfitness for their design of defining and limiting powers, its interpolation by construction for the purpose of extending these same powers, would be an evident inconsistency. It would produce several very obvious contradictions in our political principles. It would transfer sovereignty from the people, (confining it to mean the right of self-government only,) to their own servants. It would invest governments and departments, invested with limited powers only, with unspecified powers. It would create many sovereignties, each having a right to determine the extent of its sovereignty by its own will. And if two sovereignties over the same subjects could never agree, it would propose for our consideration what was to be expected from an army of sovereignties. Our constitutions, therefore, wisely rejected this indefinite word as a traitor of civil rights, and endeavored to kill it dead by specifications and restrictions of power, that it might never again be used in political disquisitions.
In fact, the term “sovereignty,” was sacrilegiously stolen from the attributes of God, and impiously assumed by kings. Though they committed the theft, aristocracies and republicks have claimed the spoil. Imitation and ignorance even seduced the English puritans and the long parliament to adopt the despotism they resisted; and caused them to fail in accomplishing a reformation for which they had suffered the evils of a long war. By assuming divine rights, because they had been claimed by kings and popes, and drawing powers from an inexhaustible store-house, they aggravated the tyranny they intended to destroy, and merited the fate which they finally experienced. Presbyteries and synods snatched the keys of Heaven from popes and bishops, and the long parliament, those of property from the king; and both demonstrated what man would do with the powers of Providence. By our constitutions, we rejected the errors upon which our forefathers had been wrecked, and withheld from our governments the keys of temporal and eternal rights, by usurping which, their patriots had been converted into tyrants; and invested them only with powers to restrain internal wrongs, and to resist foreign hostility; without designing to establish a sovereign power of robbing one citizen to enrich another.
Sovereignty is neither fiduciary nor capable of limitation. Accordingly, the long parliament asserted, that “there were two sovereignties in England, their’s and the king’s,” and left us a specimen of what may be expected from two sovereignties here, state and federal. Two sovereignties or supremacies over the same subjects have often appeared. Two or more emperors frequently existed in the Roman empire, each claiming the absolute powers of sovereignty. Several popes have existed at the same time, each claiming the absolute powers of supremacy, and both pretending to keep the keys of Heaven. But sovereignty being by its nature a unit, its division implied usurpation, and therefore the king, the parliament, the emperors and the popes, in exercising it, were all usurpers; and hence an allotment or division of the powers of sovereignty by our governments among themselves, would also be an usurpation. If we must use terms, taken from the deity to adorn the brows of men, we cannot still divest them of their meaning; and as sovereignty implies individuality, we are reduced to the necessity, to satisfy its meaning, of looking for this essential quality. I admit that it may be found among us, either in congress or in the people; but I deny that it can exist in both. Chastened down to the signification of a natural right in nations to institute and limit their own governments, it only embraces the principle by which alone social liberty can be established; extended to the idea of a power in governments to regulate conscience or to distribute property at its pleasure, it includes the principle by which social liberty is destroyed.
Oppression is universally caused by pecuniary fanaticism. If the proposition be true, the remedy is indicated. Does the indication point to a sovereignty in governments over property, or to its security against a power so despotick? As the evil has eluded and corrupted all political theories hitherto, it required a remedy at its root. Sovereignty was its root, and we endeavoured to eradicate it by establishing governments invested with specified and limited powers. But the evil, restless and persevering, requires a perpetual activity and jealousy on the part of nations, to keep it from shooting up new scions. Protean and plausible, its shrubs must be grubbed up as they appear, or they will soon grow into trees. As the love of wealth is common to all civilized men, and governments are composed of men, laws to protect the property of nations against governments are as necessary, as laws to protect the property of one man against another. Jugurtha’s exclamation against the government of Rome was foolish. The influence of avarice even at that early age was not a novelty. What ground then was there for surprise, because ‘Rome was for sale?’ The government exercised an absolute power over the national property. How then could he have doubted, whether this power could find purchasers? I discern no age, no country, no government, wherein these sales of the rights and properties of mankind have not abounded. Though the modes of this political traffick are multifarious, yet the result is as certain as a mathematical conclusion; and a remedy which can reach all modes can only be effectual.
Lycurgus, sensible of the cause by which governments were corrupted, excluded it entirely; and surrendered the amenities of life, the acquisition of knowledge, the elegancies of taste, the fine arts, the circle of the sciences, and almost civilization itself; because he computed a loss so enormous as a cheap sacrifice, to get rid of an evil so calamitous. The Athenians, unwilling to surrender the blessings of life, but sensible of the evil, endeavoured to restrain it, by the ineffectual expedient of the ostracism. The Romans long resisted the avarice of the senate, vainly depended upon elective tribunes to abolish frauds in which they participated, and at length fled from the avarice of many, to the avarice of one. The ignorant northern conquerors saw no better remedy against oppression, than to yield the utmost scope to the principle of sovereignty, by an absolute transfer of themselves and their property to feudal kings and barons. As the Europeans became more enlightened, they became sensible of the tyranny of avarice, and after a series of ineffectual struggles to emancipate themselves from its grasp, have only changed the form of its operation, without diminishing its oppressions. England, the most successful in theory, has nothing to boast of in practice; and even the improvements in the form of her government, have become instruments for avarice, by which it has effected as much at least as the feudal system could accomplish. By the confidence derived from representation, united with the power of a sovereignty in the government over property, avarice is enabled to draw from the people all they can possibly spare. Thus they owe to the wisest political discovery, the greatest political evil; and representation itself, the last refuge of hope, is contaminated and rendered abortive, by its union with a sovereign power over property. The means used by a sovereignty in the English government, are monitors to us. They consist of a long catalogue of exclusive privileges, and legal donations, bestowed by the power of sovereignty, and taken from private property. The nation, tutored by the domestick usurpations of sovereignty, have been taught to believe, that it was as right to sacrifice foreign nations to its own avarice, as it was, that themselves should be sacrificed to the avarice of domestick combinations; and have suffered a second series of calamities from the same unjust principle, because the spoils of oppression are always intercepted by the instruments for inflicting it. The same thing arises universally from the most specious domestick combinations, under pretence that they will advance the national good. The managers of the pretext absorb its fruits, and the majority of the nation get regret for their loss. The people of England have gazed at the wealth amassed by the bounties, the pensions, the monopolies, the exclusive privileges, the tithes, and the contracts of their sovereign government, until, being undeluded by the argument of sensation, and deceived no longer in the promises of projects to diffuse blessings, they are only restrained from subverting society itself by the force of a mercenary army.
A love of property is the chief basis of civil society; but like all other passions it ought to be regulated and restrained, to extract from it the benefits it can produce, and to counteract the evils it can inflict. All honest politicians have acknowledged the necessity for constitutional restrictions, to curb the fanaticism of ambition; and as the love of wealth is a passion of wider influence, being often even the primary motive by which ambition itself is awakened, that also demanded constitutional restrictions, at least as forcible, to operate upon the individuals who composed a government. If a society is so constituted, as to invest a government with a sovereign power over property, restrictions upon the passion of ambition must become abortive, because the government will possess the means by which it is excited and nourished.
The distribution of wealth can only be regulated by industry, by fraud or by force. Fraud and force are of equal weight in the scales of justice. Theoretically, they are of the same character; practically, fraud has been by far the most pernicious in distributing property. Yet pecuniary fanaticism or exclusive privileges, can abhor a resort to force, and admire a resort to fraud for the same purpose. What could be objected to the exercise of a sovereignty in the people, forcibly to distribute property? Nothing stronger than may be objected to a sovereignty in the government, to do it fraudulently. If pecuniary morality, or the freedom of property is the basis of a good government; and if a distribution of property by the power of the government or even of the people would designate a bad one; no remedy which would reach only half the evil, could make the government good. If it deprived the people of this pernicious power and gave it to the government, or if it deprived the government of the power, and gave it to the people, the social principles would either way be imperfect, because neither expedient would be bottomed upon the natural right of mankind to the fruits of their own labour. We must extract principles from facts, and the experience of the whole world supplies them in abundance. England alone, the admired model of a sovereignty in government over property, supplies facts enough to establish the principles, and to justify the conclusions for which I have contended; and would prove, that an artificial sovereignty for taking away that which belongs to others, cannot be better, than a natural sovereignty, for keeping that which belongs to ourselves.
The use of a hyperbolical word, suggested by a laudable zeal, has exposed philosophers to some degree of ridicule; and their exertions for benefiting mankind, have been considerably counteracted, by insisting upon our “perfectibility.” If the exaggerated word “sovereignty” can be successfully used to disencumber our governments in general, or the federal government in particular, of the restrictions imposed upon them by the people; it would be peculiarly hard, that one extravagant word should arrest the improvement of man’s state, and also that another should deprive him of the improvements he has made; though both as being hyperbolical, would seem to merit an equal share of ridicule.
Suppose, however, we admit the hyperbolical claim of sovereignty to divine origin, and concede the consequence, that as its origin is divine, its powers must be boundless; it will then be necessary to enquire upon whom the splendid donation has been bestowed, whether on kings, on governments, or on the people; on one man, on a few men, or on all men. Now, as the two first of these competitors are artificial beings, and the last only natural beings; and as we know of no other channel, except that of nature, through which this divine boon has been conveyed; and as mental and bodily faculties, common to all men, are the only evidences of it; the enquiry would seem very clearly to terminate in the conclusion, that the rodomontade “I alone am king of me” was considerably more modest, than that other, now contended for, “I alone am king of you.”
This is a concession conformable to the doctrine of the highest-toned advocates for sovereignty which have ever appeared; but it would be uncandid to confine the enquiry to a ground which would only propose for our election, liberty on one hand, or the utmost conceivable degree of despotism on the other. The modern and more moderate advocates of sovereignty have ceased to contend for its divine origin; and have rather struggled for its powers, than defended the genealogy so much insisted upon by their predecessors. They seem tacitly, but by no means plainly, to admit that sovereignty is not a divine, but a conventional right. They must assume one of these grounds in asserting the sovereignty of governments, and as the latter is the strongest, I will yield it to them. Having gotten upon this ground, chosen by the advocates for sovereignty, I now ask them to shew me the conventional sovereignty for which they contend. Far from discerning any glimpse of the powers of sovereignty in our constitutions, I see nothing but long catalogues of limitations, restrictions, balances and divisions of power, and if this young political family can be ground back into the old hoary traitor sovereignty, in the mill of construction, it will be just reversing the ancient prodigy of grinding old men into young ones.
I do not however admit that “sovereignty and the right of self-government” are equivalent things, except it is supposed that both reside in the people, and neither in a government. Under this supposition it follows, that sovereignty or self-government are natural rights, and that governments cannot participate of either, because their rights are all conventional. This opinion is so firmly fixed in our country, however in some cases exterior politeness may subsist with internal contempt, or verbal concession with practical disavowal, that I may safely assume the principle, that the right of self-government, and sovereignty also if it came from God, resides in the people. This being a natural right, like the right to our own labour, no existing generation can deprive another of it, and convey it to kings or governments, upon any better ground, than it could decree, that the heads of all future generations, as fast as they arrived to manhood, should be taken away from them. If no conventional act can deprive man of life, liberty and property, and if sovereignty in governments would have this effect, it follows that sovereignty cannot be conventionally established; and that whether gentlemen deduce it from this source by hyperbolical inferences, or from a divine origin, it is still a useless, foreign and perplexing word to our political system. But supposing the rights of sovereignty and of self-government to be inseparably united with each other; and that a number of men assembled to exercise one right, are also invested with the other; yet I see no reason why they may not establish a government with limited powers, and retain this imaginary sovereignty if it is real; and instead of uniting with these limited powers, the indefinite powers of sovereignty, agree that they shall be subordinate to their will, restricted by their constitutional mandate, and liable to their revision. This was actually done in the establishment of all our constitutions; and as these conventional acts, far from bestowing sovereignty on governments, have actually retained it in the hands of the people, if it existed at all, and if sovereignty may have a conventional origin, it is so deposited, I shall therefore disregard the distinction between the rights of sovereignty and of self-government in the progress of this enquiry, and in accordance with common language, use the term “sovereignty” as an attribute of the right of self-government, and only applicable to the people.
We must then return to the old idea of sovereignty, in order to compare it with the new one. The sovereignty of kings, presumptuously derived from the same source, from which mankind derive the right of self-government, long puzzled philosophers and patriots before it was exploded; but no sooner was the usurpation wrenched from kings, but other men, with other titles, seized upon it for their own use. Thus the enquiry glided into an immaterial controversy, and instead of considering the question, whether any man or set of men ought to exercise the absolute power of sovereignty, the only contest was, whether it ought to be exercised by a monarchy, aristocracy or a republick. In such a contest the people could never gain any solid or permanent victory; for, sovereignty was the prize of the victor, in any event, at their expense. In England, it has circulated among all these combatants. It has been exercised by kings, by occasional aristocracies of barons, by lords and commons, by the commons alone, and by a protector of the liberties of England; by governments, regal, aristocratical, elective and hereditary. All of them exercised its despotick powers; granted franchises to the nation or to any section of it; bestowed, revoked and modelled representation; created monopolies, corporations and exclusive privileges, and managed commerce as a means for defrauding labour and gratifying avarice. First the barons, and then the lords and commons, transferred the crown from one man or family to another; and finally, this fluctuating sovereignty has settled, not upon the people, but upon king, lords and commons, with a power unlimited, except as lord Coke observes, that it is unequal to impossibilities. Its capacity to effect any political changes or innovations, is demonstrated, by its having extended the power of a house of commons elected for four years only, to seven. These facts are constructions of the word “sovereignty,” displaying the consequences of its adoption into our political vocabulary. By referring to the English books and practices, from which it is borrowed, for its interpretation, it turns out to be synonimous with despotism. How then can it be incorporated with our political system, without investing our governments with a power of encroachment; without freeing them from constitutional restrictions; and without subverting the sovereignty of the people? No English sovereignty regal, parliamentary or republican, recognized sovereignty or a right to self-government in the people. The long parliament loved sovereignty as well as any other form of government. All the usurpers of sovereignty used favours and penalties to sustain it, and the acceptance of the former was a voluntary acknowledgment of a right to bestow them. Among a people jealous of their liberty, this mode for procuring a confession of the existence of a sovereign power in government, will undoubtedly be preferred as the safest, and selected as the most successful; but as it is the most seducing and dangerous, it ought to be restrained with the greatest circumspection. Exclusive privileges will make more proselytes to despotism, than the severest punishments.
But it may be objected, if sovereignty and despotism are synonimous terms, that the sovereignty of the people is also a despotism. The objection is answered by the following considerations. If societies are instituted by consent, the objection fails, because the despotism objected is converted into free will and in fact becomes the very opposite of despotism. If by the majority; it is then to be considered, whether this species of despotism or sovereignty, is preferable or not, to despotism or sovereignty in one person or in a minority. An alternative, arising from comparison, constitutes the scope for the range of intellect. In theory, it is probable that much fewer causes will exist, which would induce the majority of a nation to invade the rights of a minority, than such as solicit one or a few to invade the rights of the nation or of some of its parts. In fact, the first have been extremely rare and evanescent; the latter, continual and lasting. It is true that many wise and good men, whilst they intuitively admit the right of self-government to reside in nations, suffer imagination to conjure up a tumultuous populace, discharging its fury upon life, liberty and property, and shrink from the terrifick spectre; whilst they cannot see any danger in a sovereign government, discharging its frauds against liberty, property and individual happiness, by monopolies and exclusive privileges. Such apparitions appeared to devout men, and caused them to deprecate the introduction of religious freedom. They were also seen by no small number during our revolutionary war, and even disfigured the declaration of independence into an ugly monster. But having, in these cases, rubbed off the rust, spread over the sovereignty of the people by ignorance and monopolies, it ought not to be lost under a new incrustation composed of phantoms, kneaded by selfishness, and spread by construction and inference. Let us recollect that this composition, if left undisturbed, indurates with wonderful celerity.
It is however superfluous to consider, whether the sovereignty of the people is a better or worse political maxim, than the sovereignty of the government; because the question to be settled for application as we proceed, is, which of these competitors is sovereign in fact. If the government created the people, that is, organized them into a nation, there can be no doubt but that the government is sovereign. The kings of England had a claim to sovereignty upon this ground. They created a nation (lords and commons) by successive charters and franchises. But unhappily for the argument, our nation created their governments. Yet it suggests an observation of no little weight. Had the lords or commons, or bodies politick, or corporations, exercised a right of creating other lords, or commons, or bodies politick, or corporations, it would have been a usurpation of the king’s sovereignty, and must gradually have subverted it. The application of this remark is obvious.
It has been observed, that sovereignty implies a correspondent inferiority; and required, that the subject for a sovereign power in our governments to operate upon, should be pointed out. Does it reach the sovereignty of the people, or is the government only sovereign over itself? Is the foolish boast, “I alone am king of me,” converted into sound sense, by being applied to a state or federal government? Our governments must, if they are sovereigns, have the people, or only themselves for subjects. To avoid a collision with the sovereignty of the people; to find subjects for the sovereignty of a government; and to avoid the absurdity of a sovereignty without subjects; it has been conceived, that some of our political departments are sovereigns over others, and one over all. This anomalous sovereignty, whilst it pretends to respect, directly assails the sovereignty of the people. All our political departments hold their power under this authority, and not under the authority of the government. But this new species of sovereignty proposes to take away all its subjects from the sovereignty of the people, and reduce it to the state of a king whose sovereignty was admitted, but who had no subjects. The pope of Rome manages this affair admirably. When he wishes to get a troublesome bishop out of his way, whom he fears publickly to disgrace, he transfers him to a cure of souls in foreign parts, where there are no souls to cure; still leaving to him the title of bishop. So if congress have any sovereignty over the political departments called states, the sovereignty of the people would lose a great portion of its cure of souls, although congress should politely leave them their title.
Our state constitutions confer upon a state majority, a power over every department of government, either directly by election, or by an influence over elective departments, entrusted with appointments. In this elemental basis, we discern clearly a positive conventional power, designed to exercise and to retain the sovereignty of the people, or the right of self-government; and we as clearly discover in the governments themselves, the subjects over which this conventional power was to be exercised. The federal constitution established three conventional powers over the federal government, lodging one in the majority of the people of each state; another in the state governments, comprised in the appointment of federal senators; and a third in the state governments also, comprised in a mode of amending the federal constitution. A conventional sovereignty being thus retained by the people over the state governments, and by the people and the state governments also, over the federal government, neither of these governments can legitimately acquire any species of sovereignty at all, because it would be contrary to the conventional sovereignty actually established. The positive supervising powers bestowed by the compact of the union, upon the state governments, over the whole federal government, flatly contradicts the idea, that the same compact designed constructively to bestow a supervising power upon congress, a department only of the federal government, over the state governments.
The divinity of sovereignty, and the natural right of self-government, are therefore really the competitors for our preference. As the latter has been evidently selected as the basis of our conventional associations, the former is the only foundation upon which any of our governments can establish a right to sovereignty. Before the American revolution, the natural right of self-government was never plainly asserted, nor practically enforced; nor was it previously discovered, that a sovereign power in any government, whether regal or republican, was inconsistent with this right, and destructive of its value. Then the divine sovereignty claimed by governments of every form, was completely exploded or reclaimed by the natural or divine right of self-government, not to be again surrendered, but to be retained and employed in creating and controling governments, considered as trustees invested with limited functions, and not as sovereigns possessing powers derived from that source of despotism.
The difference between the right of self-government, and the sovereignty of governments, is very material. Under one principle the people bestow limited powers; under the other, they receive limited franchises. The sovereigns of England sparingly and partially bestowed rights upon the people, and retained all the powers they did not surrender. Here the people or the states retain all the powers they have not bestowed. It would be as absurd in the one case as in the other, to infer from limited grants, a transfer of the sovereignty itself. Whenever such inferences were made, the king was substantially deposed, until the inference itself was exploded; and similar inferences will in like manner depose the sovereignty of the people here.
In the hurry of a revolution, before this subject had been well considered, and in imitation of the English practice of receiving franchises from kings, a bill of rights was annexed to several of the state constitutions; but it was soon discovered, that this was both superfluous and dangerous; superfluous, as according to the right of self-government, powers not bestowed, remained with the people; dangerous, as it seemed to imply that the people, as in England, derived their rights from the government. In England, residuary rights not granted, remained with the government, and therefore it was important to the people to extend such grants as far as possible; here, such ungranted rights remain also with the grantors, but these are the people. This distinction put an end to the custom of annexing a bill of rights to state constitutions, and caused a proposition of the kind to be rejected by the sages, statesmen, and patriots, who framed the constitution of the United States. It can only be correct upon the ground, that neither the state nor federal governments received any powers except as trustees, or specified; and of course it was thought that the term “sovereignty,” and its coadjutors “supremacy and prerogative” were inapplicable to our governments, and incapable of defeating the reason, upon which a bill of rights was rejected. Otherwise, this rejection must be considered as a stratagem (for they cannot be charged with a want of knowledge,) invented by a considerable number of our wisest and best men to enslave their country.
The patience of the reader is solicited, whilst I am endeavouring to establish the principles by which we ought to be guided in construing our constitutions. Unless this is done before we enter into that intricate field, as the soundest minds cannot suddenly and intuitively understand new and intricate questions, they will never be understood at all; nor construction confined within any range. To prove that the right of self-government, or sovereignty, if the right should be so called, resides in the people, may be thought a waste of time, as it is generally admitted; but in my view it seemed necessary to consider the point, both to sustain the arguments to be extracted from it as I proceed; and because an inattention to its consequences has, I think, caused several unpremeditated deviations from that loyalty to this primary principle of our whole political system, which our governments both feel and profess.