- 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).
I guess this is a longer disagreement than can (or should) be argued in the comments section, but I believe that the notion of "popular sovereignty" is both incorrect and impossible. I believe (as demonstrated by the Italian Elite Theorists & James Burnham) that the "iron law of oligarchy" makes it impossible. More critically, I agree with Bodin (elsewhere in his book) and with de Maistre that a polity proceeds a people, much as a father proceeds his children, and that a state defines its people, not vice-versa. Lastly, as Legutko argued, "popular sovereignty" can be a chimera wherein procedural outcomes and the "general will" are ripe to be manipulated.
Yes, probably best not to argue much more on this forum. Completely disagree with you, and there's plenty of evident to refute your opinions on these matters. Again, I'd suggest moving away from "I believe Y because of X theory by Z scholar," and more toward personal acquaintance with primary source material that will allow you to formulate you're own picture of the evidence without artificially and anachronistically imposing an academic theory where it doesn't fit.
Under the US constitution the US Congress has proximate sovereignty and the citizen voters in each state have ultimate sovereignty. Why? Because the voters can remove, by elections, any member of congress. And because the constitution authorizes the US Congress to impeach and remove the US president and also to impeach and remove any of the justices of the US Supreme Court.
Leaving aside my objections to the possibility of popular sovereignty, I respectfully disagree with your reading of the constitution. Historically, states have had diverse methods of choosing their members of congress, as prior to the 17th amendment states could choose their senators as they willed, and prior to Baker v. Carr & Wesberry v. Sanders states could choose their own unique method of allotting US House seats. Thus, if your argument were to be true, then the people would have ultimate sovereignty (and Congress proximate sovereignty) solely due to the whims of the Warren Court. This would be a paradoxical situation (and if anything suggest that sovereignty belonged to the court), we find ourselves back at square one, where the three branches are all jockeying for ultimate sovereignty.
I concede and grant that there are significant points of discussion to be found in the history involving the 17th amendment and the two court cases that you mentioned. But please let me mention that I believe there is a considerable amount of evidence within the constitution pointing to the fact that the founders intended for Congress to be the supreme branch of the federal government. For example, there is the fact that the framers granted only to congress the power to declare war.
Fair point-- & this is why I separate de jure from de facto in the article. I do disagree as for the intent of the Framers (though this is a legitimate point of scholarly debate), though I agree that Congress was dominant during the "American Triumvirate" of Clay, Calhoun, and Webster.
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).
I guess this is a longer disagreement than can (or should) be argued in the comments section, but I believe that the notion of "popular sovereignty" is both incorrect and impossible. I believe (as demonstrated by the Italian Elite Theorists & James Burnham) that the "iron law of oligarchy" makes it impossible. More critically, I agree with Bodin (elsewhere in his book) and with de Maistre that a polity proceeds a people, much as a father proceeds his children, and that a state defines its people, not vice-versa. Lastly, as Legutko argued, "popular sovereignty" can be a chimera wherein procedural outcomes and the "general will" are ripe to be manipulated.
Yes, probably best not to argue much more on this forum. Completely disagree with you, and there's plenty of evident to refute your opinions on these matters. Again, I'd suggest moving away from "I believe Y because of X theory by Z scholar," and more toward personal acquaintance with primary source material that will allow you to formulate you're own picture of the evidence without artificially and anachronistically imposing an academic theory where it doesn't fit.
Under the US constitution the US Congress has proximate sovereignty and the citizen voters in each state have ultimate sovereignty. Why? Because the voters can remove, by elections, any member of congress. And because the constitution authorizes the US Congress to impeach and remove the US president and also to impeach and remove any of the justices of the US Supreme Court.
Leaving aside my objections to the possibility of popular sovereignty, I respectfully disagree with your reading of the constitution. Historically, states have had diverse methods of choosing their members of congress, as prior to the 17th amendment states could choose their senators as they willed, and prior to Baker v. Carr & Wesberry v. Sanders states could choose their own unique method of allotting US House seats. Thus, if your argument were to be true, then the people would have ultimate sovereignty (and Congress proximate sovereignty) solely due to the whims of the Warren Court. This would be a paradoxical situation (and if anything suggest that sovereignty belonged to the court), we find ourselves back at square one, where the three branches are all jockeying for ultimate sovereignty.
I concede and grant that there are significant points of discussion to be found in the history involving the 17th amendment and the two court cases that you mentioned. But please let me mention that I believe there is a considerable amount of evidence within the constitution pointing to the fact that the founders intended for Congress to be the supreme branch of the federal government. For example, there is the fact that the framers granted only to congress the power to declare war.
Fair point-- & this is why I separate de jure from de facto in the article. I do disagree as for the intent of the Framers (though this is a legitimate point of scholarly debate), though I agree that Congress was dominant during the "American Triumvirate" of Clay, Calhoun, and Webster.