Sovereignty and Agency

By: Mike Maharrey

 

 

In the American political system, the people of the several states are sovereign, meaning they hold final or ultimate authority. Power flows from them to the federal government, which merely serves as their agent. 

Virginia’s ratification of the Constitution put it this way.

“All power is naturally vested in and consequently derived from the people; that Magistrates, therefore, are their trustees and agents and at all times amenable to them.”

The Constitution and Agency Law

This reflected the fact that the Constitutional system is at least partially rooted in agency law. That means the government – the agent – was created to serve the people of the states, and the will of the people of the states.

As the Legal Information Institute at Cornell Law explains it, “An agency relationship may arise when one person (a “principal”) and another person (an “agent”) agree that the agent will perform certain actions on behalf of the principal, subject to the principal’s control. Such a relationship may also arise when the law authorizes one person to represent another person’s interests.”

In the American system, the people of the states are the principals and the federal government serves as the agent.

As St. George Tucker explained in View of the Constitution of the United States, the first systematic commentary on the Constitution, the federal government serves as “is that portion, only, of the sovereign power, which, in the opinion of the people of the several states, could be more advantageously administered in common, than by the states respectively.”

Tucker also emphasized a point James Madison made in the Report of 1800 – that the people of the states’ submission to the operations of the federal government is “voluntary” and the federal government’s “councils, its sovereignty is an emanation from theirs” – the states.

In other words, the only legitimate power the federal government wields flows from the people of the states.

Tucker was far from alone on this view. During the New York ratifying convention, future Chief Justice John Jay made a similar point.

“The proposed government is to be the government of the people: all its officers are to be their officers, and to exercise no rights but such as the people commit to them. The Constitution only serves to point out that part of the people’s business, which they think proper by it to refer to the management of the persons therein designated: those persons are to receive that business to manage, not for themselves, and as their own, but as agents and overseers for the people, to whom they are constantly responsible, and by whom only they are to be appointed.” [Emphasis added]

The North Carolina ratifying convention laid out a declaration of rights, among them that “all power is naturally vested in, and consequently derived from the people; that magistrates, therefore, are their trustees and agents, and at all times amenable to them.”

There, James Iredell proclaimed that “the people are known with certainty to have originated [government] themselves.”

“Those in power are their servants and agents; and the people, without their consent, may new-model their government whenever they think proper, not merely because it is oppressively exercised, but because they think another form will be more conducive to their welfare.”

This was a relatively radical idea at the time, and it underpinned the American Revolution.

The Evolution of Sovereignty

As already noted, in practice, sovereignty means ultimate authority. Whoever is sovereign in a system has the final say. They are the boss.

Government itself was considered sovereign in the years prior to the American Revolution. Typically, sovereignty flowed through the king.

The “divine right of kings” flourished in the wake of the Protestant Reformation, but as early as the 1500s, people began to question this absolute sovereignty and suggest there were limits on their power.

In Vindiciae Contra Tyrannos (A Defense of Liberty Against Tyrants), Stephen Junius Brutus argued that civil government implied a covenant between the people and the king. This compact, whether implied or explicit, limited the government’s authority over the people.

“It is certain, then, that the people by way of stipulation require a performance of covenants. The king promises it. Now the condition of a stipulator is in terms of law more worthy than of a promisor. The people ask the king, whether he will govern justly and according to the laws? He promises he will. Then the people answer, and not before, that while he governs uprightly, they will obey faithfully. The king therefore promises simply and absolutely, the people upon condition: the which failing to be accomplished, the people rest according to equity and reason quit from their promise.”

In other words, the king may not break his promise to the people under any circumstance, but the people have a right to break their compact with the king if he behaves unjustly.

From this, Brutus drew a logical conclusion.

“Now, seeing that the people choose and establish their kings, it follows that the whole body of the people is above the king; for it is a thing most evident, that he who is established by another, is accounted under him who has established him, and he who receives his authority from another, is less than he from whom he derives his power.”

John Locke, Algernon Sidney, and other thinkers built on this idea in the latter part of the 17th century.

In his Second Treatise on Government, Locke argued that every individual exists in “a state of perfect freedom to order their actions, and dispose of their possessions and persons as they think fit, within the bounds of the law of nature, without asking leave, or depending upon the will of any other man.”

Given this “perfect freedom,” people can only come under the power of government by their consent.

“Men being, as has been said, by nature all free, equal and independent, no one can be put out of this estate, and subject to the political power of another, without his own consent. The only way whereby anyone divests himself of his natural liberty and puts on the bonds of civil society, is by agreeing with other men to join and unite into a community, for their comfortable, safe and peaceable living one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it.”

Sidney took things a step further. He argued that when government steps outside of its legitimate authority and acts unjustly, the people should refuse to comply.

“That which is not just is not Law; and that which is not Law, ought not to be obeyed.”

As the English system evolved, Parliament grew more powerful. By the 1700s, the British lived under a constitutional system, but not in the same sense Americans think of it today.

In this system, the “King in Parliament” was sovereign. Effectively, Parliament had the final authority with the king serving as the arm to put its power into action. The Massachusetts royal governor Sir Francis Bernard summarized the British conception of power in a letter he wrote urging Parliament to exert more control over the colonies in 1764.

He started by asserting that the British government was “not subordinate to or dependent on any earthly power.”

“The King in Parliament has the sole right of legislation, and the supreme superintendency of the government; and, in this plentitude of power, is absolute, uncontrollable, and accountable to none; and therefore in a political sense, can do no wrong.” [Emphasis added]

Bernard went on to assert that even the King must ultimately submit to the will of Parliament, while nothing bound that body, not even itself.

“Though the King can do acts to bind himself and his successors, he cannot bind the Parliament; nor can the Parliament bind their successors, or even themselves.”

The British constitution was not written, and in the British system, no distinction existed between “the constitution or frame of government” and “the system of laws.” They were one and the same. Every act of Parliament was, in essence, part of the constitution. It was an absurdity to argue an act of Parliament was “unconstitutional.”

Since it was sovereign, anything Parliament did was, by definition, constitutional. In fact, parliamentary acts became part of the constitutional structure.

Influenced by Locke, Sidney, and others, the American colonists began to question whether the British could arbitrarily change the constitution. They argued that it should be “fixed.”

As James Otis Jr. put it in his 1761 speech against the Writs of Assistance, “An act against the constitution is void.”

A year after Parliament began passing the Townshend Acts in 1767, the Massachusetts legislature approved a document written by Samuel Adams and James Otis Jr. known as the Massachusetts Circular Letter. In it, we see this revolutionary conception of government beginning to take form. Adams and Otis argued that when Parliament acts outside of its constitutional bounds, it destroys its own foundation.

“In all free states the constitution is fixed, and as the supreme legislative derives its power and authority from the constitution, it cannot overleap the bounds of it without destroying its own foundation; that the constitution ascertains and limits both sovereignty and allegiance.” [Emphasis added]

It wasn’t long before Americans began to question the very notion of government-held sovereignty itself. It was an evolutionary process, but eventually, the colonists began to conceive of sovereignty residing in the people, not in any part of government. Instead of a monarch or a legislative body holding plenary power, the people were supreme.

This was the logical conclusion of Locke’s reasoning, and Thomas Jefferson incorporated this idea in the Declaration of Independence.

“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, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.”

Sovereignty in the American System

The Declaration of Independence set the philosophical foundation for the American system of government. The people would remain sovereign and the government would serve the people.

But how is that sovereignty exercised?

Through the states.

The Preamble of the Constitution declares where sovereignty lies – we the people. But it would more accurately read “we the people of the states.” In fact, the initial draft listed all of the states, (i.e. “We the people of Connecticut, Delaware,” etc) but the committee of style realized this would be problematic if some states chose not to ratify.

This is key – the people ratified the Constitution through the existing sovereign political societies – the states. The Constitution itself makes this distinction in Article VII.

“The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.”

So, it wasn’t the mass of Americans ratifying the Constitution as “one people” or “one nation.” It was the people of each individual state adopting the Constitution. Their independent actions created a political union between those states choosing to ratify.

James Madison and other founders referred to this as a “compact.” Nine states could form the union with four remaining independent, sovereign nations. The ratification by those nine states would not have bound the people in the other four. In fact, the majority of Americans adopted the Constitution, it did not suddenly bind the people living in those states yet to ratify it.

James Madison summed it up succinctly in Federalist #39.

“Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act.”

By state, Madison meant the “people of the states.” He explained this in detail in his Report of 1800. There, he acknowledged that the term “state” is vague and has varying meanings.

“It sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments, established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity.” [Emphasis added]

Madison went on to assert that it was in that final sense that, “the Constitution was submitted to the ‘States’: In that sense the ‘States’ ratified it; and in that sense of the term ‘States,’ they are consequently parties to the compact from which the powers of the Federal Government result.”

To put it in the simplest terms, the people of the states are sovereign and the government is their agent.

As St. George Tucker said, federal power is “not a flame by which [the states] have been consumed, nor a vortex in which they are swallowed up. Each is still a perfect state, still sovereign, still independent, and still capable, should the occasions require, to resume the exercise of its functions as such, in the most unlimited extent.”

The bottom line is the federal government is a servant of the people of the states – their agent and nothing more. And as the saying goes, no servant is greater than the master.

Patrick Henry put it this way.

“The governing persons are the servants of the people.”

As a result, Mercy Otis Warren observed that the people have “an incontestable right to check the creatures of their own creation.”