Sovereignty Considered

What is sovereignty, how does sovereignty impact a free nation's outlook on foreign affairs, and why does federalism provide a unique safeguard to America's ideal of sovereignty?

Image uploaded from pxfuel.com

What is Sovereignty?

We often hear the word sovereignty thrown around quite a bit, but a lot of people have a tenuous grasp of what the word is supposed to mean. We hear things like “such and such nation has violated another nation’s sovereignty,” “these policies surrender our own sovereignty,” or “without a secured border, a nation has not secured its sovereignty.” Clearly, sovereignty is an important thing to a lot of people (as well it should be), but what exactly is it?

For most, I think the answer is usually something along the lines of self-determination and the independence of a given nation. I think that’s a great place to start, but the idea of sovereignty goes much deeper than that.

Among political theorists, sovereignty is usually defined as something along the lines of “the ultimate power in political and social society.” In other words, wherever power and authority are placed in a society, that is the sovereign. Before the rise of republicanism and modern democracy, the sovereign was usually a single person, such as a king or an emperor. Sometimes, it was a body of people, such as a ruling council.

Now, just to be clear, when we are talking about sovereignty, we’re not talking simply about the form of government. Government is where power and authority reside but not necessarily where they derive from. In a traditional monarchy, for example, the power and authority both resided in the crown and derived from the crown itself. The king answered to no one. He was not bound by any former king’s laws, the expectations of his advisors, or his people’s desires. When a king is sovereign, his will defines the law. (Coincidentally, a common definition of tyranny is “the rule of will.”)

So, who is the sovereign in America? Is it Congress, the Presidency, or the Courts? Is it the federal government as a whole? Is it the States? We can observe clearly that power and authority reside in each of these governing entities but does power and authority derive from them independently, or are they granted, delegated, or enumerated to them?

Yes, as some of you may have guessed, this is where we are going to discuss the Constitution and constitutional law in a newsletter called Artificial Reason. In the American system of government, power and authority in the various entities of government is established by the text of the Constitution. But (in case you were wondering), the US Constitution is not sovereign. In order for its provisions to have any meaning, it itself must derive the authority to “ordain and establish” American governance in the name of another sovereign entity.

The answer is the first three words of the document: We the People.

One of the most truly revolutionary ideas of the American Revolution was that sovereignty, the ultimate power in our political and social culture, resides in the people. Not in the king who answers to God alone, not in a parliament claiming the right to bind in all cases whatsoever, but in the people themselves. The US Constitution shook the very foundations of the nature of power, authority, and legitimate governance with a preamble that amounts to a declaration of popular sovereignty (itself an extension of the Declaration of Independence, which lays out the very essence of this notion of sovereignty).

To be clear, popular sovereignty is not the same as governance solely by popular will or absolute majoritarianism. The people are sovereign as a whole, not simply whoever can cobble together a majority of half the people plus one and rule the country. Government in a nation that concedes its existence is under the authority of the whole people must see to the public interest of the whole people.

So, for popular sovereignty to exist, various principles in classical liberalism (upon which American governance is built) must be in place to allow government to both reflect popular will while ensuring majorities don’t run roughshod over political minorities. Seemingly paradoxical but nevertheless true, popular sovereignty is secured when a society becomes “a nation of laws, not men.” Sovereignty, then, becomes a complicated question of balancing the various competing interests in classical liberal theory.

Does War Violate the Principle of Sovereignty?

One of the things that confronts a nation built upon the idea of popular sovereignty is that once such a notion is embraced, it must be conceded that all people everywhere are sovereign. This reality necessarily directs how and why a free nation interacts with the other nations of the world. Specifically, war becomes a question of much more than basic national interest. The ideas of conquest, domination, and unprovoked attack are illegitimate when considering the reality of the sovereignty of foreign peoples. But at the same time, the ideals of popular sovereignty can compel a free nation to wage war in the interest of its universal principles.

Because people are sovereign, a nation or its government cannot itself claim sovereignty if it has subverted the sovereignty of its own people. When it comes to the moral question of a free nation going to war with another nation, the question isn’t whether or not to “violate” another nation’s sovereignty but whether that nation’s government has violated its own people’s sovereignty and/or has encroached the sovereignty of another nation.

For example, I would consider America’s war in the Philippines at the turn of the century an unjust war because while we defeated the Spanish imperialists, we took their place as imperialists rather than establishing self-determination. On the flip side, I believe we should stand militarily by Ukraine because Russia has attacked their sovereignty and self-determination and indeed rejects that the Ukrainian people even have sovereignty or deserve self-determination.

But the decision to engage in a military campaign and interfere with a country’s internal affairs is a complex consideration. While I would assert that defending sovereign nations from external aggression is nearly always in the interest of stability and the ideals of free nations (though the how is a matter of considered prudence), military intercession in every circumstance where popular sovereignty is violated through internal oppression is imprudent and could destabilize existing free nations and bring whole regions, and even the world, into conflict.

I believe that America, as the world’s first modern republic and pre-eminent classically liberal society, is a city on a hill and has a duty to defend and secure the sovereignty of others where we can. The longest stretches of peace in modern history have resulted from free nations asserting the importance of popular sovereignty in the international realm and demonstrating the resolve to defend their principles through the contest of arms. But there must be limiting principles.

I would assert four basic requirements for a free nation to engage in a war to defend the sovereignty of another people from internal oppression: first, we can observe a full thwarting of popular sovereignty by a nation’s government or a complete collapse of government into anarchy, second, the people in question have organized against their government and made overtures for assistance in their struggle, third, the people in question are unable to fully thwart the forces arraigned against them or escape cycles of anarchy pursuant to the collapse of their government without outside assistance, and fourth, our involvement would not precipitate a widening sphere of conflict or trigger regional and/or global war.

Sovereignty and Federalism

America has a unique federalist system that creates what’s termed “dual sovereignty.” Both state governments and the general government are sovereign in that they each reflect the sovereignty of the people in different spheres of authority and responsibility. The general government has what are termed “enumerated powers” in that their authority derives from the US Constitution and does not extend beyond the sphere of power enumerated in that document. But in the 10th Amendment, the states have all other powers “not delegated to the United States by the Constitution, nor prohibited by it to the States” and therefore have what is termed “police powers.”

Originally, this separation was a bit more clear cut, but the 14th Amendment muddied the waters to a certain extent by establishing that the State governments must adhere to certain provisions of the US Constitution as well. So, while states still have “police powers” and are not simply limited to the “enumerated powers” of the US Constitution, that police power is now circumscribed by many of the provisions in the Constitution.

This is a very good thing, but it has created complications and necessitated a body of constitutional law built by the courts as they have interpreted the 14^th Amendment as cases are brought before it regarding claims of state and local violations of the Bill of Rights. The difficult balance, the great question of dual sovereignty, is finding the point at which States are fully in sync with the provisions of the Constitution while still maintaining their existence as sovereign states and the police powers guaranteed to them as established in the Tenth Amendment.

But there are many who do not want to rediscover the proper balance between state and federal authority in a federalist system. Instead, they want a more centralized, streamlined approach to most political questions, such as elections, and believe that, ultimately, state sovereignty is an antiquated notion designed for a pre-technological age.

With our advancements, they argue, we should move to view states as administrative districts of the national government and not as separate and sovereign entities. This view advocates legislation that is very specific and all-inclusive when it comes to laying out its provisions. They point out that local and state governments in America’s history have been the culprits of most civil rights abuses and that it is the national government that has often stepped in and protected the rights of the people. In this view, various arguments for localism and state sovereignty are tinged with racism and tyranny and are ultimately excuses to run roughshod over ethnic and political minorities without interference by the national government.

My view seeks to maintain what I believe is a careful and important balance. Madison, in the Federalist Papers, rightly points out that for a large nation to be governed effectively, it must either have a despotic form of government that can hold the segments together with an iron fist or have independent layers of government that allow for both general governance of the whole and specific governance of the segments (each answering to the people directly).

It is simply impossible to have a one-size-fits-all approach to a nation as large as America has been throughout its history. If the national government settled all political questions, millions and millions of Americans would have the will of millions and millions of other Americans foisted upon them. The union would not last long if this became the case in all circumstances. For this reason, I am for general governance at the federal level and specific governance at the state and local level.

A good example would be elections. It is most definitely the duty of the federal government to ensure three general provisions for the preservation of free and fair elections: first, that elections take place; second, that each citizen has reasonable access to the ballot; and third, that the elections are transparent and have a working process for challenge and review. But beyond these general considerations, the specifics of the manner of elections are better left to state and local considerations, where the people can have a more solid representation of their unique circumstances, ideas, and opinions.

There is a very real question as to whether a large republic can long survive if it isn’t maintained as a federal republic that ensures as many decisions as possible are made at the level of government closest to the people themselves. I doubt that the idea of popular sovereignty is even possible in a large country with an overly centralized government, as it becomes beyond believable that the common good of all the people would be the purview of a single governing organization subject to capture by a single interest group with majority support.

Suppose local and state governments were to become simply smaller administrative districts that operated at the behest of a centralized, national government. In that case, the only political question is who controls the national government. Winners and losers in the contest for control of the national government would be winners and losers everywhere in society. There would be no pockets of alternate political thought, no sanctuaries for loyal opposition, no laboratories for alternate political visions, and much smaller platforms for mounting campaigns against the powers that be.

In short, if the idea of popular sovereignty could survive in such a state, it would be a wounded and stunted thing, as the powers of even the smallest of majorities would be unrestrained in their dominance of the entire political structure with minority interests holding little expectation that their needs, concerns, and desires will have any representation in the crafting of the national future.

Justin Stapley is a graduate student at Utah Valley University, studying constitutional governance, civics, and law. He is the founding and executive director of the Freemen Foundation, editor-in-chief of the Freemen News-Letter, and the state director for the Utah Reagan Caucus. @JustinWStapley