Who is America’s sovereign?

One sometimes hears it said that, in America, every citizen is sovereign. The opposite is nearer the truth: In America, no one is sovereign. This is vital to the American understanding of rule of law.

The word sovereign has more than one meaning, and is applied both as noun and as adjective. We have gathered the following meanings from various dictionaries:

1. one possessing supreme political power
2. one who exercises supreme authority within a limited sphere
3. a gold coin of the United Kingdom
4. superlative in quality; the ultimate or utmost
5. having undisputed ascendancy
6. A nation that governs territory outside its borders.
7. independent of outside authority, as in a sovereign state.

To these we add an additional meaning, more ancient but nonetheless relevant, which comes from the etymology of the word. The word sovereign comes form the Middle English soverain, from Anglo-French soverein, from Vulgar Latin superanus, from Latin super. Meaning: over, above. As in:

8. above the law.

Coinage is obviously not relevant to our discussion. And, while we find much to admire in the American character, we blush from holding Americans to be sovereign in the fourth sense. Nor is the ascendancy of the United States undisputed. (Only for a brief period of years following the tend of the Second World War did the Unites States come close.) The United States does govern territory outside its borders, and it is a sovereign state, but the former is a narrow technical sense of sovereign and the latter, while important, is not a creature of the Constitution.  The United States is sovereign, but that is a topic for a different discussion in a later post. Thus the senses of sovereign relevant to the present discussion are:

1. one possessing supreme political power
2. one who exercises supreme authority within a limited sphere
3. above the law.

When it is said that every American is sovereign, it is doubtless meant in the first sense. Because every adult American (except the duly convicted felon and the certified incompetent) is entitled to vote in certain elections, it is sometimes claimed that the American citizen is the sovereign of the United States. This is a serious mistake. In the second place, it is an example of the logical fallacy of division. Even if it is true that the voting public as a body is sovereign, it does not follow that individual voters are sovereign. At the lowest level of government whose structure is prescribed by the Constitution, namely, election of Representatives, we find that there are very roughly half a million voters in each Congressional district. Even allowing for a typical voting rate of 50%, that means each voter has 1/250,000th of a say in each House election. The odds that his vote will decide an election are vanishingly small. We vote anyway, but our reasons for doing so are transcendent rather than rational. Combine this with the very real phenomenon of rational ignorance, and we have a topic well worth considering in depth in a future post. For now, the key point is that sovereignty of the voting public does not mean sovereignty on the part of the individual voter.

But in the first place, not even the voting public is sovereign in the United States. We are not a pure democracy, and this is a good thing. Pure democracy is two wolves and a lamb voting on what to have for lunch. Pure democracy is Athens voting to force Socrates to drink hemlock. Pure democracy is gang rape. The Framers knew this, and while they understood legitimacy to derive from the consent of the governed — and understood that plebiscite was important as an expression of that right — they placed many things beyond plebiscite. Laws are not passed by plebiscite, but by a majority of a House of Representatives, plus a majority of a deliberative Senate, plus the assent of an indirectly elected President; or by a supermajority of both the House and Senate. Even then, the law can be struck down by a unelected and permanently tenured judiciary as unconstitutional.

So the individual American voter is not meaningfully sovereign in the first sense. Nor is he sovereign in the third sense, of being above the law. The “sovereign citizen” movement is an aberration, with no roots in the thinking of the Framers. On the contrary, its American roots, to the extent it has any, are in Shay’s Rebellion, one of the crises that led to the Constitutional Convention.

The second sense does apply, in a limited way, to American voters.  The Bill of Rights ensures that individual Americans are sovereign in what they choose to think, read, say, and worship, among other things. The government is forbidden to interfere with these choices. This is hardly unimportant, but we do not think this is the sense that is generally intended by the claim that American voters are sovereign.

The key here is in the third sense of sovereign: In America, no one has sovereign immunity. No one is above the law.

This deserves some explanation, particularly in light of recent debates over the old Roman question, Quis custodiet ipsos custodes? To what extent does a President enjoy immunity from the law? Other elected officials? What is the Constitutional justification for qualified immunity? What is the standard of evidence for rejecting a judicial or other nomination on the basis of allegations of past misconduct?

The Constitution privileges some official activities. Article I, section 6:

The Senators and Representatives … shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

These are sometimes described as parliamentary privilege. It is important to understand why the Framers thought them necessary, and also to understand the limitations placed on these privileges. The privilege from arrest was considered necessary to prevent the executive from interfering with the supremacy of the legislature, through spurious arrest of members of Congress. The privilege extends to privilege from arrest by state officials as well, preventing state interference in the legislature, and particularly preventing interference by officials of one state with members of Congress from another state. But this privilege is limited: The member of Congress is not protected from serious crimes or from inciting to riot. Nor is a member protected from arrest after returning from a session of Congress.

The privilege against defamation suits likewise was meant to ensure candid debate in the houses of Congress. Defamation is not a minor matter, but the remedy lay in the houses themselves, who could vote to expel a member whose conduct went over whatever line was supported by two-thirds of the members. If, hypothetically, a member of Congress insisted on reciting classified information in a public session of Congress, the Speaker could shut down the member’s speech at once, according to the house’s rules of order. Speech that is spoken out of order is no longer protected, or at least it should not be. (The Supreme Court has broadened this protection by ruling that speech by a member of Congress in committee is equally protected, but we know of no precedent for speech out of order.) The member could subsequently be expelled, if necessary, to prevent future offenses.

Harry Reid was immune for legal consequences for his famous (and admitted) untruths spoken about Mitt Romney’s tax returns, because they were spoken on the floor of Congress. He should not have been immune from political consequences, but he held enough political power that no majority of two-thirds could be formed against him. This is to the shame of his party and the Senate.

The President is more or less immune to indictment and arrest for federal offenses so long as he remains President. This is not spelled out in the Constitution, but it is implied in the concept of the unitary executive. Again, there is a compelling reason for it — the executive cannot be divided against itself and still function properly — but there are also, at least in theory, important limitations. The President has no immunity to indictment by state grand juries, which are part of a state executive distinct from the federal one. He is also not immune to indictment after leaving office.  We know of  no precedent for how statutes of limitations apply in such cases, but theoretically that, too, should not matter — the remedy for criminal behavior by a President is impeachment and removal, at which point the Constitution is explicit that the removed President is subject to the normal legal processes. If the various fraud claims that have been raised against Trump have merit, then Trump will lose his immunity from answering for them before the law on the 20th of January 2021.

Qualified immunity is, so far as we can discern, a pure invention of the courts. It is a recent innovation, dating back only to 1967. It is the legal principle, established in Pierson v. Ray that year, that a government official acting in good faith (i.e. believing that his actions are legal) cannot be personally sued for violations of rights. It was invented, so far as we can tell, to prevent activists from endlessly tying up officers and courts with frivolous suits meant to interfere with legitimate government activities, by providing a bright line for summary dismissal and possible sanctions against lawyers who repeatedly brought such suits. Unfortunately, it seems to have morphed into a protection for law enforcement officers from many legitimate claims of infringement of rights. We are not by nature optimists, but we believe the pendulum is already beginning to swing back here, and a better balance will eventually be struck.

It should be clear from the discussion so far that, notwithstanding discussion of state sovereignty, the states are not sovereign. The Constitution stripped the states of their sovereignty with the Supremacy Clause. The states do have something similar to individual rights, but that is not the same as sovereignty. This is a topic for a future post.

If the people are not the American sovereign, then who is?

No one.

America has no sovereign, by design. Under the Constitutional order, no one person or institution is politically supreme. Yes, we speak of legislative supremacy, and will revisit that topic again; but even the will of Congress can be lawfully thwarted under the Framer’s system. By the Framer’s design, no permanent majority of Americans can run roughshod over the rights of a minority.