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What is sovereignty and who has it

By Dr. Robert Owens
web posted May 24, 2010

Sovereignty is accepted as absolute uncontested authority.  This definition of the concept of sovereignty emerged along with the nation-state.  The nation-state hasn't always existed.  Everyone tends to see the circumstances of their own times as the static normality of history.  And contrary to the endless lectures of History teachers tied to politically correct text books and standardized tests, History is not static it's dynamic, it changes every day.  The concept of the nation-state emerged in the sixteenth century evolving from countries as the private property of monarchs, and however hard to envision the nation-state will someday be replaced by something else.   

If that's what sovereignty is who has it?  In England it's vested in Parliament.  In China it's vested in the Central Committee of the Communist Party.  But in America sovereignty isn't vested in any one place, which means there really isn't any.  No sovereignty?  How can that be?  Since sovereignty is an absolute, it either exists or it doesn't and it's a misapplied concept when striving to understand the American government. 

This does not mean that the United States is not a sovereign nation.  The Federal Government represents the United Sates on the world stage.  To the other countries of the world the Federal Government is the sovereign power with which they must deal.  However, domestically we face a different situation.  In some areas the Federal Government is sovereign, in some areas the States are sovereign, and in some areas the people are sovereign.  Since sovereignty by definition is an absolutist concept and not one of degrees, either something is sovereign or it is not.  In the United States there is no one legitimate source or center of sovereignty.  The revolutionary theory the Framers advanced into practice is that several centers of power prevents the formation of an authority vortex swallowing all legitimate authority and paralyzing decision making, thus establishing the world's first viable system of disassociated sovereignty.

Under the Articles of Confederation, which preceded the Constitution as the foundational document and framework of organization of the United States, stated categorically in Article II, "Each state retains its sovereignty, freedom, and independence."  Nowhere in the Constitution is this retention of inherent sovereignty surrendered.  The so-called sovereignty clause found in Article Six of the Constitution obviously gives precedence to the laws and treaties made by the Federal government it does not however expressly say anywhere in the document that the States surrendered or forfeited their inherent sovereignty.  If it had it never would've been ratified.  As expressly stated in the 10th Amendment neither the States nor the people surrendered their sovereignty to the Federal Government they delegated it.  There is a difference between these two actions.  To surrender is to give entirely and irrevocably to another while delegation is a temporary action based upon continued agreement between the parties involved.

Another strong argument can be made that since all governments are the products of a social contract between those who govern and those governed sovereignty ultimately resides in the people and governments are therefore merely agents of the people's will.    According to this line of thought all governments wield delegated powers and can have no more power in and of themselves than the moon has light without the sun.

Amendment is the only legitimate process for change under the Constitution.  If the design calls for a decentralized diffused sovereignty in an asymmetrical system how was change achieved from that to the current system of highly centralized power and control?  Was it by amendment or practice?  Is it possible for an illegitimate practice to become a legitimate tradition?  Is it possible for an illegitimate tradition to set a legitimate precedent? 

All of these historically based academic discussions aside and for all intents and purposes the argument about who is sovereign was forever settled by Abraham Lincoln.   When the South attempted to succeed, an action not prohibited by the Constitution they were beat back into submission to the Federal Government.  Debate over.  Question answered.  The Federal Government is supreme.  However, though this is the reality of our circumstance since the Civil War this is a reality imposed through the use of military force not to be confounded with the original condition based upon the voluntary agreement between the people, the states and the national government in Constitution. 

For years this question of who is sovereign has see-sawed back and forth.  Today the Progressives and their two headed government party seek to make the exaltation of the central government permanent.  If this stands unchallenged America has devolved from the defused model established under the Constitution to a centralized version reminiscent of its original absolutist definition.  If this new normal is enshrined as reality it will become increasingly obvious as States strive to assert their rights and people seek to preserve their freedom.  For if the central government is now absolutely sovereign it will eventually crush all rivals.  If the people are sovereign in time they'll find their voice, reassert their power, re-establish the federal system, and return to the social contract as ratified in the Constitution. ESR

Dr. Robert Owens teaches History, Political Science, and Religion for Southside Virginia Community College and History for the American Public University System. © 2010 Robert R. Owens dr.owens@comcast.net






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