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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