Jean Bodin vs. David French: Who is Sovereign?
All the cases against Trump point to one question: Who is sovereign?
Mason Letteau Stallings is an undergraduate student at Washington University in St. Louis and the editor-in-chief of the Danforth Dispatch. He is a member of the university’s Interdisciplinary Project in the Humanities and intends to write his senior thesis on Jean Bodin.
Jean Bodin, a Catholic legal theorist and member of the politique faction during the French Wars of Religion, is often not either read or remembered in the modern Anglosphere. Though hugely influential in France, he is overlooked in favor of Hobbes, Locke, or other Whiggish (and anti-Catholic) writers. However, Bodin’s most famous legal work, Six Books of the Commonwealth, provides an essential analysis of sovereignty that is very applicable to our present situation with President Donald Trump.
Recently, David French discussed on a podcast the disqualification of Trump from the Colorado ballot. While that issue has largely been resolved, one can not help but think about what Bodin would care about the case, especially as it concerns sovereignty. While everyone has opinions on Trump, January 6th, and the legal merits of the case itself, those things would be found to be immaterial by Bodin, as the true significance of the case is not whether the orange man is bad or good, but instead where sovereignty lies.
The first question that Bodin would explore in this case (indeed the most important question in any legal order) is to ask “Who is sovereign?” While de jure sovereignty in the United States is divided between the states and the federal government, Bodin would point out that this is de facto impossible. Bodin treats it as a given that a land can only have one sovereign power within it, be it a single person (a monarchy), or multiple (a republic).
In Bodin’s view, the relationship between sovereign and subjects mirrors the relationship between a father and his family, and man cannot have two sovereigns at various levels of government for the same reason that he cannot have multiple fathers. As an American state shares the same ruler as the individual subject, only that ruler, the federal government, is the actual sovereign (a fact that Bodin points out about federated states).
Bodin, of course, believed in subsidiarity and the delegation of powers through magistrates, however, this delegation of powers suggests that there is still a single source for them, again, the sovereign. At the federal level, while Bodin would recognize that a state can have a sovereign authority made up of multiple parts or people (such as the Venetian Senate), and thus all three branches can theoretically share in sovereignty, even though this de facto creates a mess where one branch will end up being (for a time) the dominant branch and the true sovereign.
Under Lincoln, Jackson, and FDR, the presidency was de facto the sole sovereign, but while under Earl Warren, the judicial branch played that role, and Congress acted as the sovereign during Henry Clay’s appointment of Adams to the presidency. Thus, de jure, Trump was part of the sovereign at the time of his presidency, comprising the head of one of the three branches of government.
Bodin would therefore treat Trump as the sovereign, and thus “above the law,” insofar as the sovereign, being he who promulgates the law, cannot have it used against him. Furthermore, if the courts had removed Trump from the ballot, Bodin would think that they had made themselves the true sovereign as they had demoted and judged the other branches.
One of the claims made both by French and by the Colorado Supreme Court, is that the president is bound by the 14th Amendment not to engage in certain actions such as “insurrection” or “rebellion.” Even if this were true de jure in the American context, this would be a legal fiction and make no sense de facto in Bodin’s opinion. This is because in Bodin’s view, “law is nothing else than the command of the sovereign in the exercise of his sovereign power.”
This is not to suggest that Bodin was a legal positivist, and he indeed did view natural law as binding on all, as its author, God, is sovereign over all things. However, in matters of the state and of positive law, the sovereign is above the law as the promulgation and maintenance of the positive law is his duty and prerogative as the sovereign.
Therefore, a constitution, which regulates the customs and procedures of a state, cannot be entirely binding on the sovereign insofar as the sovereign preserves the constitution, not vice-versa. Therefore, Bodin would view the attempt to prosecute someone for actions taken while partaking in sovereignty as an illegitimate prosecution and one that undermines the whole of American positive law, insofar as the law exists at the sovereign’s command, and an attack on sovereignty is an attack on law.
Bodin, however, recognized that a sovereign can be somewhat limited in his actions by a constitution. In the example of a monarchy, Bodin comments that “the constitutional laws of the realm, especially those that concern the king’s estate being, like the salic law, annexed and united to the Crown, cannot be infringed.”
This indicates that a constitution (informal or formal) binds a sovereign because as it is where the legitimacy of the sovereign is derived from, and since, “on this [the constitution] is founded and sustained his [the sovereign’s] very claim to sovereign majesty.”
These words about the sovereign’s claim to legitimacy being derived from a constitution are as true for America’s government, and our written constitution, as they were for the informal constitution of the France of Henri IV, of which Bodin was referring. For example, if any of the three branches of government were to completely overstep or fail in their constitutional role, the branch in question would lose legitimacy.
At the same time, Bodin recognizes that a sovereign, by the nature of sovereignty, can ignore his constitution without any de facto legal penalty, following up his sentence stating that a constitution “cannot be infringed,” with the phrase “should he do so, his successor can always annul any act prejudicial to the traditional form of [government].” This suggests that to Bodin, it is de facto possible for the sovereign to circumscribe the normal legal order. However, this should be rarely done, and when it does happen, should be annulled as to preserve the legitimacy of a future sovereign.
This can be seen in the American context with Lincoln. Finding himself in crisis, exercised his sovereign power to use extra-constitutional means to address the crises and resolve the war that the nation faced. However, these actions he they took were not repeated by his successors, and today we would be aghast if the president put out an arrest warrant for the chief justice, as Lincoln considered.
Thus, the use of extra-constitutional power by any of the three branches that share sovereignty can only be judged by providence and by history. Therefore, even if Trump violated the constitution in any of the ways he is accused of, Bodin would say that any prosecution of him is illegitimate, as Trump still shared sovereignty as the head of one of the three branches (and thus could use his sovereign power to abrogate the constitution).
Furthermore, Bodin would likely take greater issue with another branch trying to prosecute its co-equal, as Trump’s actions would only have had an effect on the branch of government that, at the time, belonged to him, while the court is trying to declare itself to be the sole sovereign in interfering with the business of another branch.
While Jean Bodin may not have gone to an Ivy League law school, unlike parts of the Colorado Supreme Court or David French, he had a much clearer view about law than any of our supposed jurists today in his understanding of sovereignty. What is at stake in the cases against Trump, and the election this November, is not minutia about the 14th Amendment, nor “democracy,” but instead the nature of sovereignty in the United States.
If any of the cases against Trump are successful, then the judicial branch will have succeeded in prosecuting a former president for his actions while serving in his office and thus will have declared itself the sole sovereign. This would, undoubtedly, be very harmful to America’s legal order because the judiciary is the branch of government most detached from day-to-day governance, and thus the most ill-equipped to deal with an actual emergency.
Therefore, the stakes facing Trump have nothing to do with Trump and everything to do with the continued security and preservation of the American legal order from a possible and blatant expansion of judicial power at the expense of the president’s ability to act as a sovereign executive.
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Two points:
- It could be said that Bodin effectively predicted the harrowing conflict to come in the 1860s.
- I don't see why the same general principle about only really having one sovereign shouldn't also apply at the federal level. And it seems to me that SCOTUS has effectively positioned itself - over the decades - as that sovereign.
This article is a great example of the perils of using foreign thinkers and theories to assess American government. Bodin doesn't understand America.
You write: "While de jure sovereignty in the United States is divided between the states and the federal government, Bodin would point out that this is de facto impossible. Bodin treats it as a given that a land can only have one sovereign power within it, be it a single person (a monarchy), or multiple (a republic)."
In Federalist No. 49 James Madison makes it clear that the sovereign in the American system is the people themselves: "As the people are the only legitimate fountain of power, and it is from them that the constitutional charter ... is derived." The people then engaged in a dual act of delegation of their sovereignty to both state governments (federal) and the national government (national). This created the compound republican structure of the U.S. Constitution. Now, Madison had a tendency to call this "dual sovereignty" (see his 1835 Essay on Sovereignty), but that's a misnomer; it is more accurate called "dual delegation," because the people remain the sovereign despite delegating power to two separate governments. The reason the people remain sovereign is they (a) possess the power of election to remove political officers; (b) possess the power of constitutional reconstruction through conventions; and (c) have final (just) recourse to the right of resistance, revolution, and reconstitution of government upon just foundations. So, all to say, in the American system, sovereignty is not actually divided. Just how a CEO can delegate his power to different subordinates, it is perfectly comprehensible for the people to delegate different political and governing tasks to different orders of government. See Fed. 39 on the breakdown between the states and national.
Bodin claims that the constitution or law cannot bind the sovereign because the sovereign makes the law and so is always in a state of exception; yet, in a way, the sovereign is still bound by the constitution. In the American system, political officers are trustees; they are absolutely bound by the Constitution from which their power and authority is derived. Although Congress makes ordinary/statutory law, they have no power to touch or change constitutional law via ordinary legislation. Thus, as Madison makes clear in Fed. 57, statutory law is binding on ALL, both the people and legislators ("they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society").
What about the people who ratified the Constitution? As sovereign, are they 'above' the Constitution since it derived from them? The answer to this is Yes and No. The act of political covenanting that took place at the Declaration and that created a Union among the people was perpetual and binding; it was not merely a legal contract that could be entered into and exited at will. It was secured by an oath that invoked the name and witness of God. The Constitution (first the Articles, then the US Constitution) was a reflection of that people--their common origins, ways of life, and ends (see Jay in Fed. 2). To ignore, exit, or upend the Constitution would be an act of undoing the very body politic created in the 1770s. (This is of course what did, in fact, happen in the twentieth century, but that's another topic.) Thus, the people are bound to each other and to their Constitution the same way a man and woman are bound to each other through the vows of covenantal marriage--that is until death, abandonment, abuse, or unfaithfulness destroys that covenant. Similarly with America. What could destroy the American covenant? Anarchy, tyranny, internal decay and despotism, foreign conquest. In these circumstances the people are above the Constitution in that they can reconstitute themselves as a body politic through another act of political covenant: they can amend the Constitution to either improve it or prevent abuses; but if that doesn't work and they still face oppression, they can act to repeal the Constitution, throw off the chains of illegitimate authority ruling them, and act to establish new government. This is what the Declaration speaks about.
I would encourage you to read less Bodin and more 18th century Americans. Go straight to the primary sources and skip modern theories. Start with James Wilson's Lectures on Law (1790).