Sovereignty, Doctrine of
SOVEREIGNTY, DOCTRINE OF
SOVEREIGNTY, DOCTRINE OF, has given rise to much spirited debate among lawyers and political theorists. It plays a central role in American law and government and has increasingly become a fundamental issue in international law and relations as well. The doctrine of sovereignty has been the focus of a number of major political theorists, including Jean-Jacques Rousseau and John Austin. It was a key issue in early debates on the structure of American government as well as nineteenth-century debates on the legitimacy of nullification and secession by individual states.
The essential nature of the concept of sovereignty is that of status and power, both de jure and de facto, which gives its possessor both internal and external autonomy. A sovereign is not subject to the control of any other individual or entity and has the right to control all those who fall within its power and jurisdiction. In the United States it is generally held that the ultimate sovereign is the people and that no individual or government entity is sovereign in its own right. Sovereign powers are delegated to both the states and the federal government by grants from the American people.
The notion of sovereignty and the sometimes competing claims of individual states and the federal government for sovereign powers has been a continuing source of debate and uncertainty in the United States. These issues were a primary focus during the formative period of American government and were specifically treated in the Tenth Amendment to the U.S. Constitution, often referred to as the reserved powers clause. The Tenth Amendment provides that "powers not delegated to the United States by the Constitution … are reserved to the States respectively, or to the people." In adopting this amendment to the Constitution, the founders attempted to clarify the system of bifurcated sovereignty between the states and the federal government and to create a system of divided practical sovereignties, recognizing that the states, which had originally joined to form the federal union, retained certain aspects of sovereignty. At the same time, the Constitution recognized that in the act of forming the United States, each individual state had given up certain sovereign aspects to the federal government. Thus, after the ratification of the Tenth Amendment, the United States consisted of both a "sovereign" federal government as well as "sovereign states," each possessing certain sovereign powers. Both state and federal governments retained the right to tax their citizens, for instance, but only the federal government had the sovereign right to deal with foreign countries to sign treaties. During the antebellum period, the extent to which states possessed full sovereignty and rights against the federal government became the subject of national debate and eventually became one of the ideological underpinnings of the conflict between the North and the South. Sovereignty is of immense importance in both domestic and international law. One of the central doctrines of American constitutional law, for example, is that of sovereign immunity. This doctrine holds that because a sovereign individual or entity is autonomous and not subject to the legal, practical, or political authority of any other individual or entity, a sovereign cannot be sued in a court of law, nor can it be compelled to answer any suit filed in any court. The only way a sovereign can be subject to the legal process is if the sovereign agrees to submit itself to such process. The doctrine fit well both with then-current notions of government and with the conservative jurisprudence of the times favoring governmental over individual rights. As political and legal opinion began to favor individual rights, the doctrine of sovereign immunity came into some disfavor. During the latter part of the twentieth century, with the rise of a new theory of federalism among conservative jurists, the doctrine began to experience a revival in regard to states. The importance of the doctrine of sovereignty was also highlighted during the last decades of the twentieth century by the role it played in the resurgent movement for increased political and legal rights claimed by Native American tribes. A number of tribes began to assert their sovereign status, demanding that the federal government recognize them as sovereign nations and accord to them many of the rights and privileges enjoyed by sovereign nations. These claims impacted the legal and political status of the tribes at every level. For instance, as sovereigns, the tribes demanded that tribal courts adjudicate all legal disputes on tribal territory. Several tribes claimed the right to regulate automobile licensing and to issue drivers' licenses, automobile license plates, and registration documents.
In the international arena, the doctrine of sovereignty is closely tied to recognition of political entities by other sovereign nations. Throughout the twentieth century, a number of nations experienced political transitions caused by war and revolution that resulted in successor states that were not always recognized as sovereign by other nations. The denial of sovereign status and the concomitant denial of official recognition by other states and international organizations carried with it serious implications for these states and, among other things, often meant that they were unable to join international organizations, be signatories to international agreements, or receive international aid.
Hannum, Hurst. Autonomy, Sovereignty, and Self-determination: The Accommodation of Conflicting Rights. Philadelphia: University of Pennsylvania Press, 1996.
Norris, Harold. Education for Popular Sovereignty through Implementing the Constitution and the Bill of Rights: A Collection of Writings on the Occasion of the Bicentennial of the United States Constitution and Bill of Rights. Detroit, Mich.: Detroit College of Law, 1991.