SOVEREIGNTY

The single term "sovereignty" is used to denote two distinct (although related) concepts of constitutional significance. It refers both to the autonomy of a state with respect to its legislative jurisdiction and to the supreme authority within the state. There are historical reasons why the same term is used for both, but to confound them is a serious and all-too-common error. The term itself comes from the Latin superans (meaning "rising above" or "overcoming") through the French souverain.

Sovereignty, in the first sense, is a concept derived from international law. A state is sovereign if it is independent of other states and possesses the authority to determine its relationship to other states and to regulate its own internal affairs. Sovereignty, in this sense, is the essential condition required for membership in the family of nations. Sovereign states do not ordinarily make treaties or wage formal war except with other states recognized as sovereign. International law also recognizes some communities as semisovereign, that is, as possessing certain, but not all, of the attributes of sovereignty. The member states of a federal union are in this category.

Internally the several states of the United States are legally sovereign in this sense insofar as they possess jurisdiction, the legitimate authority to declare the law within their territory. But this sovereignty is not unlimited. As the Supreme Court said in parker v. brown (1943), "The governments of the states are sovereign within their territory save only as they are subject to the prohibitions of the Constitution or as their action in some measure conflicts with powers delegated to the National Government, or with Congressional legislation enacted in the exercise of those powers." The jurisdiction of the states is constitutionally limited by subject as well as by territory, but within their sphere the state governments are as supreme as the national government is within its sphere. This is the meaning of what james madison in the federalist #39 called the "compound republic."

The states enjoy some other attributes of sovereignty: they may not without their consent be sued in their own courts or in the courts of the United States (see sovereign immunity; eleventh amendment) and they possess independent and plenary authority to lay and collect taxes on persons, things, or transactions within their jurisdiction. Among themselves, also, the states are sovereign. The jurisdiction of a state is exclusive of the other states. Disputes between or among states in cases not governed by the Constitution, an interstate compact, or a federal statute are resolved according to the principles of international law. But the sovereignty of the states does not limit or diminish the sovereignty of the Union. In all international affairs and in domestic affairs properly subject to it, the government of the United States is sovereign. Without its consent, the United States may not be sued in the courts either of the United States or of the several states.

In political theory sovereignty is generally held to be indivisible; careful writers thus distinguish between the indivisible sovereignty of the people and the powers or attributes of sovereignty that are divided between the national and state governments. Hence alexander hamilton, in The Federalist #32, wrote of "the division of the sovereign power." But not all political actors are so careful; it is not uncommon for politicians, judges, or commentators to refer to a "division of sovereignty" in the federal system.

The second meaning of sovereignty as the single, supreme authority within a state, above the law and uncontrollable except by its own will, was introduced into political theory by Jean Bodin in his Six Bookes of the Commonwealth (1576). Its most extreme expression was given by Thomas Hobbes who, in Leviathan (1651), asserted that opposition to tyranny was identical with opposition to sovereignty, or, in other words, that there is no standard except its own will against which the actions of the sovereign can be judged. A democratic, but no less radical, form was given to this concept of sovereignty by Jean-Jacques Rousseau in The Social Contract (1762).

Originally an analytical or explanatory formulation, the notion of a single, indivisible power in the state became a prescriptive article of the Tory political creed. william blackstone identified the King-in-Parliament as the sovereign in England. Governor thomas hutchinson, in his famous dispute with the Massachusetts Assembly in 1773, ascribed that same status to Parliament within the British Empire—denying that the provincial legislatures of America had any power or authority except by Parliament's grace. To the Whigs of America the Hobbesian idea of sovereignty, as it was stated by Hutchinson, represented a threat to the liberty they had inherited and the self-government they had established. As an empirical assertion the indivisibility of sovereignty seemed to be disproved by the federal systems of Germany, Switzerland, and the Netherlands, as well as by the British imperial system as it existed in the mid-eighteenth century; and as a prescriptive formula it was all too clearly intended to subvert American home rule.

The social contract theory expressed in the declaration of independence and the first state constitutions was a rejection of the Tory doctrine of sovereignty. Neither the government nor any branch or officer of the government justly exercises any power except by the consent of the governed. The doctrine of equality of rights means that no person or body of persons is above the law. The claim of the Declaration, our most fundamental constitutional document, is that there can be no sovereign but the people. This doctrine of popular sovereignty was identified by alexis de tocqueville as the defining characteristic of American constitutionalism. Both the national and state governments derive their powers from the people through the Constitution. Each exercises jurisdiction, but neither possesses sovereignty in the absolute, Hobbesian sense.

The Hobbesian notion of sovereignty was translated from a political to a legal concept in the nineteenth century by the British jurist John Austin, who argued that there was no higher law against which the decrees of the state could be measured, and so the power of the legislature was absolute. In this revived form it was brought to America as part of the intellectual baggage of legal positivism.

Throughout American history a favorite rhetorical device has been to identify one level of government—usually the state—as sovereign. The success of this device depends upon the ambiguity of the term. That a political body exercises jurisdiction, is supreme within its sphere, and is autonomous in its internal affairs does not mean that it, its government, or its legislature is immune to the sanctions of the law or is free of the constraints of higher law. To speak of the "sovereign states" is not entirely inaccurate if the speaker refers to their autonomy within their own sphere, but it derives its force by evoking the notion of indivisibility and illimitability drawn from the other sense of the term. The rhetoric seemingly denies that the sovereign states are comprised within a sovereign Union.

Within the American regime the ultimate power and authority to alter or abolish the constitutions of government of state and Union resides only and inalienably with the people. If it be necessary or useful to use the term "sovereignty" in the sense of ultimate political power, then there is no sovereign in America but the people.

Dennis J. Mahoney
(1986)

Bibliography

Diamond, Martin (1970) 1981 The Founding of the Democratic Republic. Itasca, Ill.: F. E. Peacock.

Jaffa, Harry V. 1965 Equality and Liberty: Theory and Practice in American Politics. New York: Oxford University Press.

Laski, Harold J. 1921 The Foundations of Sovereignty. Pages 1–29 in The Foundations of Sovereignty and Other Essays. New Haven, Conn.: Yale University Press.