Sovereignty, Natural Law and Continuity of Government

Ben Faulkner

June 26, 2010

“But what do we mean by the American Revolution? Do we mean the American war? The Revolution was effected before the war commenced. The Revolution was in the minds and hearts of the people…This radical change in the principles, opinions, sentiments, and affections of the people, was the real American Revolution.” –John Adams, Letter to H. Niles, February 13, 1818; emphasis in the original

Present Conditions

Before I begin, allow me to say that this is quite long, and you, the reader, would be well suited to read it in more than one sitting. That being said, as I write, another American week full of federal government corruption and secrecy has passed with all the sound and fury it could muster. While the left hand of the federal executive busies itself attempting to impose moratoriums for which is has no constitutional authority to enact, the right hand has apparently sent warships through the Suez Canal with the Israelis in yet another bellicose move against the Iranian state. Meanwhile, a federal agency with practically no constitutional justification for its very existence has further impeded the efforts on the part of Louisiana to protect itself from the oil spill, and, as a storm appears to be brewing in the Caribbean, with methane levels apparently charting through the roof in the spill area, speculation concerning a possible mandatory mass evacuation in the Gulf States has continued. Anti-free speech legislation and new pernicious bank-empowering regulations have made gains this week while the pirate kings of the G-8 and G-20 are meeting in Canada to plan our future. On top of these happenings, one can easily find establishment voices suggesting that any criticism of the status quo is mere paranoia at best and sedition at worst.

In the event that principled opposition to the powers that be, and basic common sense, comes to be labeled and punished as sedition, I certainly hope there is more than enough evidence to convict me personally a thousand times over. Compared with past events in the great human story, we may not yet be living in a true authoritarian system, but certainly that is precisely what we are trending towards. Rarely if ever when we are shown videos on the evening news of American power being projected abroad (think “shock and awe”) do we ever stop to ask ourselves what the consequences of such overwhelming might being turned inward would be; rest assured, though, dear reader, that if ever we find ourselves living in a red-hot tyranny, it will be wrapped in the flag, and some life-tenured federal judge will bless it with a fictional and pretended “constitutionality”.     

These are peculiar and perilous times we have fallen into; but in the fresh breath of Liberty that is likewise blowing and reanimating the partially dead corpse of authentic American Federalism, these are also exciting moments to be alive. If we are to navigate this difficult terrain of history, it is a must that we have the clearest possible understanding of the words we are using to describe the days, the events, the actions of government, and the organization of government as contemplated by the Federal Constitution. In essence, it is a time to say what we mean, and to mean what we say. An example of such a word that cannot well afford any mincing of its meaning when we use it is the word “sovereignty.” If we are to advocate for the sovereignty of the States as the correct, constitutional expression of the sovereign rule of the people within the Federal Union, it is nonnegotiable that we understand not only what we mean by that word, but also what the Founding Generation meant when employing it.

The Nature of Sovereignty in the American System

The nature of sovereignty and its disposition and concentration in the American system of government has not organically changed in that the Tenth Amendment certainly was never repealed nor the inherent nature of the States specifically altered; but the public understanding of it, however, has been altered and revolutionized since the War Between the States. Indeed, the public understanding of sovereign power is almost completely inverted from that held at the beginning of this governmental experiment. What “sovereignty” is, and who or what is sovereign in our political system, when we strip away all the straw men, red herrings and distractions, these are the questions of our time. How the generation I am a part of answers these questions will likely determine the fate of human liberty and civilization.

The simplest, most concise definition of Sovereignty in the American context is the power to make or un-make constitutions or governments. In our system, as originally understood, there is no higher earthly power than that. Most of the Founding Generation understood that the authority to call a system of government into existence or to confer legitimacy upon a government, along with the twin, parallel authority to “alter or abolish” a government, is the penultimate power in any given political system. Is the presidency sovereign? What about the large, multi-national banks, or the Federal Reserve System? How about the Department of Defense, the various intelligence agencies and the firms contracting with them? They certainly wield tremendous power, and behave as though they are accountable to no other power on the face of the planet. Have we decided that these entities are to be understood as sovereign and as having the final say over our lives, our destinies and our political fate? If they are in fact sovereign, when did they become so? At what point did the people, acting in our organized capacity as the States, specifically transfer such power to them?

Now I ask you, does the President of the United States possess a power to change our form of government at will? We seem to be content to allow our Presidents these days to take us to war without consulting the elected representation of the People and States in Congress; we’ve allowed Congress to dress up the Presidential office and the Executive Branch generally with all sorts of “emergency powers”. Indeed, we’ve even tolerated Presidents simply granting new powers to themselves by way of Executive Order (“Stroke of a pen, law of the land; kind of cool, huh?”). At this point, no less than five generations of Americans have aided, abetted, allowed or acquiesced to such foolishness. Nonetheless, can the President, by his own will, at his own discretion, legitimately alter or abolish the Constitution, the Federal Government, or any one of the States?

Absolutely not; any such act would be an aggression against his oath of office, and would effectively be the same as a resignation. Certainly it would be at the very least an impeachable offense if our system were properly functioning. Likewise, I’ll ask, beyond being able to merely propose amendments, what power does Congress have to unilaterally alter or abolish the Constitution, the Federal Government, or any one of the States? Congress has no more power to fundamentally change our form of government than the President does! So, I ask the same question concerning the Judiciary: through a bastardized understanding of judicial review, the Courts have arrogated to themselves the supposed power to change the Constitution by changing its interpretation. I will point out that no such function is given to the Judiciary in the language of the Constitution’s Third Article, and in the process of amending the Constitution—that is, changing it—doesn’t involve the Judiciary at all; it can therefore be demonstrated quite conclusively that neither the Supreme Court, nor the lesser federal courts (which are mere creations of Congress), possess any legitimate power to unilaterally change the Constitution or our form of government.

So, this power, which is THE SOVEREIGN POWER, who or what holds it, constitutionally, in the American Federal system? The Constitution can only legitimately be altered by the Consent of the Legislatures or Conventions of 3/4ths of the States, period. The Constitution does not acknowledge any other valid means of alteration. The power to decide on amendments, the power to call for a General Convention of the States which, if the delegates thereto so chose could replace the current Constitution entirely, this power, this expression of FUNDAMENTAL SOVEREIGNTY remains with the STATES. This was true even before the Tenth Amendment was adopted, which focuses on the distinction between powers delegated by the States and people and powers reserved by them. But what are the States? The States are ultimately the people who compose each of them, the States being their common, unified voices, the expression in organized form of their political will, tied to specific geographic territories.

Due largely to the defective way history is taught in the United States, we’ve come see the difficulties between the Colonies and Britain leading up to independence as some sort of cartoonish protest over high taxes rather than what it was: an argument over the nature of sovereign power and traditional, constitutional liberties. British political theorists at the time had developed an understanding of sovereignty that held that Parliament—the Monarch, the Lords and the Commons together—was the final expression of constitution-altering power in Britain, and by extension, the Colonies. To these thinkers, this included the power to legislate and tax the Colonies, and to “bind them in any case whatsoever.”

The colonists could point to their own charters, granted by the Crown, which guaranteed that the settlers and their heirs were to enjoy the same rights they would have if they resided in Britain; among these was the right to consent (or withhold consent) in person or through an representative agent to any tax. If the power to tax the colonists existed, it was lodged in their own assemblies, not in a Parliament three thousand miles way in which they were not represented. To the Colonial thinkers, each Colonial assembly was essentially on equal footing with the British Parliament in terms of powers and the form of government in each colony relative to the Crown. That is to say, for example, sovereign power in the Colony of Georgia was not lodged in the King and Parliament at Westminster, but in the King, represented by his Governor, and the Provincial Assembly in Savannah. But in a scene repeated in different ways in each of the Thirteen Colonies of British America, the People, by their own acts, withdrew themselves and their consent to be governed by these royal bodies, and established Revolutionary governments, based affirmatively and expressly on the consent of the governed. The act of Revolution withdrew the Sovereign power from the King’s governors and the Assemblies, and placed it squarely, firmly, and undeniably in the hands of the people of each State.      

The new State governments were expressly republican in form, and whatever power they had was derived directly from the People. So, what about the Continental Congress or the Confederation Congress that succeeded it—were these Sovereign bodies? The simple answer is, no, they most certainly were not. The Delegates to the Continental Congress were bound by instructions they were given by their State legislatures; they were credentialed by their States, and could be recalled and replaced at will by their States. “But Mr. Faulkner, didn’t they found a Nation when they issued the Declaration of Independence?” you might ask. Contrary to contemporary nationalistic thinking, the answer is no, not exactly. Read the Declaration and the preceding Lee Resolution for yourself, keeping in mind that the phrase United States was then and is now properly a plural term. They announced, jointly, the independence of Thirteen States, each of them with all the rights associated with independent States.  The Continental Congress is best understood as the limited governing body of a wartime alliance, not a sovereign power unto itself. As for the Confederation, the Articles themselves expressly reserved “sovereignty and independence” to each State. A confederation of independent states is not—it absolutely, unabashedly cannot be—despite all the rhetorical rubbish to the contrary, a true nation in the original sense of that word.

So we have seen that the People within each State are sovereign over their respective States, that acting through these organizations, they formed first an alliance and then a Confederation, in which they retained whatever powers they had not given specific permission to the Continental and Confederation Congresses to exercise. So what then of the Federal Union under the Constitution? Was the Convention that met at Philadelphia that wrote the original Constitution a sovereign body?

Folks, they just wrote the thing. They didn’t and couldn’t put it into effect by themselves. For starters, they grossly exceeded their mandate from the States. They had been sent there to work out revisions to the existing Articles of Confederation, not to write and entirely new plan of government for the Union. By the terms of what they composed and proposed to the States, this Constitution could only take effect if it was ratified by nine states, and only between those States actually adopting it. If any State chose to stand aside, there was no provision for compelling it to participate in the new government. Initially, North Carolina and Rhode Island did, in fact, choose to sit the whole matter out.

So in these circumstances putting the Constitution into effect, who was Sovereign? If it wasn’t the Federal Convention, and if it wasn’t the government to be created by the Constitution, then it had to have been the States, or rather, the People of the States acting in their organized capacity as the States. Each State acted separately, and there most definitely was not an instance where the people of all the States in aggregate voted together to adopt the Constitution. This is the true, inherent nature of the Federal Government as originally expressed and understood; is has been abused, it has been denied, and it even saw the force of arms used against it by the sixteenth man to wield the executive power of said government. The Federal Government, under the Constitution itself, is not and cannot legitimately be, sovereign. It has only the right to exercise the powers specifically delegated to it. That is to say, the people holding office in the Federal Government do not have any legitimate power that has not actually been granted to them by the Constitution. The final power to alter or abolish a government was in no way delegated by the People of the States to the Federal Government, and it remains now just as it ever has with We the People of the States.

What is Government?

Given that John Adams signed the infamous Alien and Sedition Acts, effectively assaulting the First Amendment before its ink had really dried, beginning a discussion such as this with a quote from that man is possibly every bit as ironic as Andrew Jackson’s scarred face appearing on the central bank’s twenty dollar note. Nonetheless, the point Adams made in that letter is a razor sharp insight into a basic political truth: outward dramatic changes in the public order are in fact manifestations of internal rearrangements that have already taken place bit by bit inside countless individuals. When any group, organized or not, desires to see some sort of tangible, actual change in a government, it is first necessary to change the way of thinking about that government, both for themselves and the wider public.

In the case of the federal government of the United States as it presently stands, if we are to ever see it again even partially corralled by the prescribed limits stated in the Constitution, we have to once and for all abandon all mythology and superstition surrounding it that would have us believe it to be a positive and benevolent force in the affairs of mankind. We have to see it clearly for what it has become: a magnet for corruption and unbridled power that refuses to acknowledge any limit upon itself. When a government routinely as a matter of policy violates its own fundamental law, questions of legitimacy inevitably have to be raised eventually. When so many of these violations also entail layer upon layer of almost ritual secrecy and outright injustice and immorality, ethical questions of good and evil, of moral right and moral wrong relative to government action have to come to the fore as well.       

The very first question that moves us towards a renewed way of political thinking is to ask the following: what is sovereignty? I have treated this topic already. The second, what are governments? In a sense, by referring to the federal government, or any government for that matter, as an “it” like I did in the previous paragraph, we dehumanize it and treat it like a thing unto itself more than and above the individuals who actually formulate and carry out public policy. There isn’t a government on the face of this earth that would have an ounce of power without persons willing to act in an enforcement capacity. Therefore governments, especially the Federal Government of the United States, ultimately are human things composed of many individuals functioning in a certain capacity.

This idea that government is some omnipotent, omniscient, and omnipresent thing—assigning it attributes of deity—is utterly alien to what governments actually are: organized groups of humans exercising some type of power over other humans.  The late Murray Rothbard described government, specifically the modern concept of the nation-state as “a gang of thieves writ large.” If human beings have it within their nature to treat each other well, then an organized group of humans would likewise have that characteristic. But, in that same vein of thought, if individual human beings on some level are prone to abuse, degrade, manipulate, deceive, and destroy the rights and belongings of other human beings, then these attributes also worm their way into what we call “government”, and are often amplified within systems of government.

Thomas Paine wrote that government is at best a necessary evil, and at worst, an intolerable one, especially when a government itself is aggressing against a people; under those circumstances, the people are acutely aware of the fact that they furnish the means by which they suffer. To put it another way, governments do not produce anything at all; they can merely take, consume, and move what was created or earned by others. Frederic Bastiat called this “legal plunder”, the process where individuals or groups use the organization that is government to loot their neighbors. John Locke stated that no group can rightfully delegate to any government a power to do what would be unlawful for themselves to do. If you and I have no right to kill but in self defense, if you and I have no right to steal, if you and I have no right to destroy property or ruin fundamental rights, we have no just basis for expecting or allowing any of the governments we are supposedly sovereign over to do so on our behalf.

Governments, therefore, are the men and women who compose them, nothing more, nothing less; for them to be just, they must rule in accord with popular consent and recognize in the citizenry rights inherent in humanity that do not depend for their existence on the reality of government.  This is why it is not just some antiquated political doctrine that necessitates the limitation of government; the fact that governments are the men and women within them, and that each of us have the potential to use whatever power we’re given in this life to inflict great harm upon others, this is why we absolutely must limit and inhibit the ability of public officials to move without check and accountability.

It is important to note here that our form of government is fundamentally republican, meaning a system of representation that is supposed to mitigate the negative effects of mere majority rule by recognizing the perpetual existence of rights that a simple power in numbers cannot overturn. Democracy, which our modern leaders at least since Woodrow Wilson have swooned and crooned about, in its basic form, is utterly repugnant in that it would, in fact, allow a simple majority to vote away the rights of a minority. Each State is to have a republican form of government, being in fact a full republic in its own right; the States are united in a Federal Union whose government is likewise properly republican in form.  Granted, the Federal Government of the United States presently operates at home and abroad more like a true empire than a republic or union of republics, and it is content to treat the States alike as administrative provinces, but constitutionally, this was not and is not supposed to be the case.

Natural Law

The previous sections touched implicitly on a legal construct known as “Natural Law”, which has come to us through history as the “Laws of Nature and Nature’s God.” The idea holds that there is a law within human nature that exists apart from established governments, and that this law recognizes certain rights that human beings in all places and all times have by the simple fact of being human. John Locke wrote extensively on the subject in his Second Treatise of Government which heavily influenced the thinking of Thomas Jefferson and other members of the Founding Generation.

This is readily evident in the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”

In other words, it is a self-evident truth that we human beings as human beings are born into this world with rights that no other human beings organized as a government can ever justly take away, provided we ourselves are not aggressing against others. We have the right to our own lives; the life that is in us until the moment of physical death does not and cannot legitimately belong to another. We have the right to preserve that life, from which are derived the rights of self-defense and the right to acquire and hold property.

The traditional understanding of these natural rights holds that we have been given them directly by God Almighty. I happen to believe this is the case, but I realize full well that the reader may not necessarily believe in the existence of a God who at some point in the past brought matter and time in to existence. For one uncomfortable with this idea, the discussion of natural law, and its assertion in the legal and political realm, should not be understood as some sort of creedal confession of faith. It is, however, a foundational principle of the original American conceptualization of our rights. That being said, however, without the existence and possibility of knowing actual truth, and without some external, final point of reference for our rights (that they are bestowed by God), the logical basis breaks down for saying that right and wrong objectively exists and that rights belonging at all times and all places to all humans.

For us to be the rightful sovereigns in this system, it is necessary that we understand that we do, in fact, have rights that would exist even in the absence of organized government, and that these rights do not and cannot come from government. They are ours, as individuals, by birthright.  

It is important to note that in our system as originally understood, with three important exceptions, only INDIVIDUALS have rights to exercise and defend. The exceptions are constitutional rights exercised by the people via their State governments as their States; the rights exercised by the federal government (an expression of the people, via their States) of legitimate, delegated powers; and, for American Indians, their national rights in their various ancient organized, tribal capacities. Other groups have been extended elective franchise by the Constitution, but these measures did not create new group rights, they simply allowed individuals of those groups rights they were previously denied (the legal fiction that grants a type of personhood to corporations is a separate manner from the original understanding of constitutional rights). This means that collectivism in any form, whether it be socialism or fascism or corporatism, is conceptually foreign to our constitutional system, and attempts to superimpose any form thereof upon the United States while retaining the present Constitution have only resulted in some absurd and dangerous hybrid.

Institutionalized Secrecy

Now, I ask you, if you and I and all of our fellow citizens are the rightful sovereigns over our respective States and, via our States, over the Federal government, with the power to make and unmake constitutions and to grant or deny our consent, by what right do our public agents, our servants, deceive us? What specific power have they been delegated to lie to us, to conceal information from us, to manipulate us, to coerce us into actions we otherwise would not have taken, to serve personal their agendas at odds with their constitutional duties? The Constitution does allow for Congress to keep portions of their proceedings secret at their discretion, and it presumably makes provision for Congress in making laws for the armed forces to allow a certain amount of secrecy as necessitated during war time to carry out operations. But beyond that, I challenge you dear reader, to find a single provision of the Constitution that allows for large amounts of information with the potential to negatively impact every single one of us to be placed beyond our scrutiny. Permanent secrecy serves only to empower the Executive Branch and its agencies at the expense of the other two branches, the States, and the People. Secrecy is the bane of free and republican government in that allows for the growth of arbitrary, unaccountable, concentrated power, that can just as easily be wielded in the shadows at home as abroad without us, the supposed sovereigns within this system, being any the wiser.

Continuity of Government

A portion of the information that is withheld from us concerns measures collectively known as “continuity of government.” To the extent that information has been made public on these programs, most of these activities seem designed to accommodate and perpetuate the continued existence and functionality of the Federal Government (in particular the Executive Branch) in the event of major disaster. Tell me, though, what basis would the Federal Government have to continue to exist in the absence of the States and the People thereof? We’ve established that it is incorrect to think of the Federal Government as a thing unto itself apart from and above the States; there can be no such thing as the United States without the States! Plans for the event of serious disaster, whether natural or manmade, that seek the bare survival of the Federal Government that do not take into consideration the survival of the States and as many as possible of the true sovereigns (the People) are utter rubbish and a betrayal of authentic federalism.  

Conclusion

If we are to see a new era of liberty, if we are to experience a future time of renewed prosperity, it is essential that we alter our way of thinking about government and our rights. The act of changing our minds is by far the single most revolutionary act that can been taken, and its fruit, God willing, one day will present itself as a less intrusive, more humane system, with the State and Federal Governments once again firmly in the hands of the People rather than the big banks, the war profiteers, various criminal syndicates, and the present corrupt establishment.

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This entry was posted on Tuesday, June 29th, 2010 at 4:17 am. It is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed.