The Green Papers Commentary
 

BE IT EVER SO HUMBLE...
There's No Place Like one's Sovereign Home

Friday, October 11, 2002

by RICHARD E. BERG-ANDERSSON
TheGreenPapers.com Staff

The modern State is a sovereign State. It is, therefore, independent in the face of other communities. It may infuse its will towards them with a substance which need not be affected by the will of any external power. It is, moreover, internally supreme over the territory that it controls. It issues orders to all men and all associations within that area; it receives orders from none of them. Its will is subject to no legal limitation of any kind. What it purposes is right by the mere announcement of its intention.

But such a theory of sovereignty has at least three aspects from which it demands a careful scrutiny. It needs, in the first place, historical analysis. The State as it now is has not escaped the categories of time. It has become what it is by virtue of an historical evolution. That development both explains the character of its present power and, at the last, offers hints as to its possible future. It is, secondly, a theory of law. It makes of right merely the expression of a particular will, without reference to what that will contains. Such a definition... has about it an unquestionable logic; but the assumptions upon which it is compelled to build make it valueless for political philosophy.

The modern theory of sovereignty is, thirdly, a theory of political organization. It insists that there must be in every social order a single centre of ultimate reference, some power that is able to resolve disputes by saying a last word that will be obeyed. From the political angle, such a view... is of dubious correctness in fact; and it is at least probable that it has dangerous moral consequences. It will be here argued that it would be of lasting benefit to political science if the whole concept of sovereignty were surrendered. That, in fact, with which we dealing is power; and what is important in the nature of power is the end it seeks to serve and the way in which it serves that end. These are both questions of evidence which are related to, but independent of, the rights that are born of legal structure. For there is, historically, no limit to the variety of ways in which the use of power may be organised. The sovereign State, historically, is merely one of these ways, an incident in its evolution the utility of which has now reached its apogee. The problem before us has become, because of the unified interests of mankind, that of bending the modern State to the interests of humanity. The dogmas we use to that end are relatively of little import, so long as we are assured that the end is truly served.-

Harold J. Laski: 'A Grammar of Politics' [1925]


In the course of the debate in both houses of Congress over the Resolution authorizing Use of Force against Iraq this past week, there was much talk- by many of those supporting the resolution against amendments proposed thereto (amendments which were, in the end, defeated)- about how we cannot allow the United Nations to adversely impact upon the Sovereignty of the United States (the implication being that, if one were to tie a possible War with Iraq to whether or not the UN Security Council acts more effectively in the enforcement of its own resolutions dealing with Iraq [the subject matter of many of the amendments proposed], this would be precisely the result). Methinks it is time for a little "reality check" here as to just what is the relationship of the United Nations to the United States of America and vice versa- even with the failure of any attempt to base Congressional assent to a War with Iraq on the action or nonaction of the United Nations itself, as President Bush still intends to try and get a new and tougher UN Security Council resolution in place before the United States would even contemplate taking military action against Iraq on its own (absent, of course, an immediate threat against the United States from that nation); but, before we can understand the true nature of that relationship, we have to first understand the basic concepts behind the word "sovereignty" so loosely (and, at times, rather erroneously) bandied about in Congress of late!

Just What Is "Sovereignty" Anyway?

In his work Treatise on the Law of Nations, the turn of the 19th Century jurist and diplomatist Georg Friedrich von Martens wrote that "[f]or a state to be entirely sovereign, it must govern itself and acknowledge no legislative superior but God". Sir George Cornewall Lewis, in his early 19th Century tome Remarks on the Use and Abuse of Some Political Terms, defined Sovereignty thusly: "[S]ome person or persons in a state are said to be sovereign, or to possess the sovereign power, when they yield no obedience to any person on earth, and when they receive obedience from the community which they govern." Lewis elaborated that "[w]hen the sovereign acts as sovereign in a legislative capacity, it cannot be said to possess rights or be subject to duties. By legislating, it confers rights and imposes duties; but its legislative power is not founded on any right, or restrained by any duty."

Now, Martens was a German and Lewis was an Englishman writing before the fullest flood of modern Constitutional Democracy had inundated their respective countries (Lewis' work, for instance, was published the same year the Reform Bill was still making its way through Parliament in Britain) and their respective statements on Sovereignty well reflect that concept within the context of the European ancien regime- that is, as a post-feudal relationship between sovereign and subjects. The American concept of Sovereignty was intended- from the start- to be much different from this: Rights, for example, were not at all conferred by the sovereign (whether King or Parliament) but, rather, "endowed by [one's] Creator" (which is what made the Declaration of Independence such a radical departure, for its time, from the then-prevalent Western conceptions of sovereign-subject Polity); thus, in the American conception of Sovereignty, the sovereign (in the form of a sovereign government) must be obedient to other persons on earth (the People, in whom resided the real sovereignty; therefore, the People are not mere subjects) and, as a result, governments could only exercise their sovereign power with "the consent of the governed" (although, as Franklin Henry Giddings- in his 1912 book Democracy and Empire- noted: "As a statement of alleged political fact, ['governments... deriving their just powers from the consent of the governed'] has singularly little content of truth. In human history governments have not often derived any powers, just or unjust, from any conscious, rational consent of the governed. Consent is more than mere submission; it implies that the consenting person, with full apprehension of the facts, has agreed to a certain conclusion of policy, through an act of his individual reason. Governments have always been dependent for their stability on the non-resistance of the governed, but non-resistance may be a product of a thousand mental and moral factors other than consent": Giddings also went on to write that "the maxim in our own [that is, American] history has been used chiefly for revolutionary purposes. The actual evolution of government in times of tranquility has gone on, for the most part, with little conscious reference to other than purely practical considerations of possibility, expediency and convenience." So one is left to wonder that, despite the theory behind American conceptions of Sovereignty, the practice has not- in fact- gone much beyond the definitions of Martens and Lewis after all!)

Regardless of the differences between American conceptions of Sovereignty in their theory, as opposed to their practice, it is- nevertheless- possible to define what makes a sovereign government and what does not. In the 1954 book Preface to Jurisprudence: Text and Cases, Orvill Snyder notes that- when it comes to Sovereignty-

[t]he following rough general propositions seem possible:

(1) If, in a definite territory, there is a government which performs most of the functions governments usually perform in relation to the population of the area, the society, i.e., the complex of population, territory and government, is, in some respects, regarded as a state.

(2) If sovereignty, juridicial ['de jure'- "by law" REB~A] and actual ['de facto'- "in fact" REB~A], is exercised as to all matters by persons who are members of the society, the society has full internal and external sovereignty and is an independent sovereign state. Example: the United States as the Union of States.

(3) If sovereignty, juridicial and actual, is exercised as to many matters by persons who are members of the society but as to some matters by persons who are not members of the society, the society does not have full sovereignty, either internal or external, and is a dependent but sovereign state. Example: a State of the Union.

(4) If sovereignty , juridicial and actual, is exercised as to all matters by persons who are not members of the society, the society, while in some respects regarded as a state, is not a sovereign state. Example: the District of Columbia. [NOTE: At the time Professor Snyder was writing, the District of Columbia did not have the elected Mayor/Council form of government the City of Washington has today; nevertheless, his premise remains basically correct because many of Washington, D.C.'s powers of governance are still largely dependent upon the largess of Congress in ways that the 50 States of the Union are not at all dependent- REB~A]

Snyder, in effect, attempts to answer Giddings as to the concept of 'governments... deriving their just powers from the consent of the governed' as the basis of the American conception of Sovereignty by noting that "[b]y consent of the governed is not meant the consent of everybody; that never occurs. Government is by consent of the governed when some number less than all of the governed consents. The proportion usually thought of is a majority and doubtless a substantial majority and not a mere preponderance by a single nose. However, on the point, a majority of whom? Some difficulty exists." He goes on to note, after asking "Who are the People?" (after all, in the American conception- as noted earlier- it is in the People that Sovereignty ultimately resides and it would have to be that "substantial majority" of the People as "the governed" that would have to so consent), that "[t]he citizens, not the population which includes aliens within the territory, are the People. But all citizens are not electors [that is, those entitled to vote REB~A] and the electors as the persons exercising ultimate political power are the sovereign People."

Snyder answers such as Martens and Lewis by coming to the conclusion that the American concept of the sovereignty of the People is a "triple concept", not the mere dual one of ancien regime Sovereign-over-Subject:

[T]he concept of the sovereignty of the People is not compounded of two elements, namely, the supreme power of the government and the subjects. It is a triple concept compounded of the following elements: (1) the supreme power of the government as power in trust; (2) the population consisting of the citizens subject as individuals thereto plus non-citizens within the territory; and (3) the sovereign power of the citizens to enforce the trust.

It is # 3 in Professor Snyder's listing directly above- combined with the supreme power of government as a trust as opposed to the idea that such power can be exercised without restraint- that made, and still makes, the American conception of Sovereignty so different from the post-feudal definitions of same put forth more than a century before Snyder by Martens and Lewis.

The Status of Treaties in the U.S. Constitution

The constitutional status of treaties made by the independent sovereign (albeit federated) Nation-State known as the United States of America with other sovereign Nation-States is contained as just one portion of clause 2 of Article VI of the Constitution of the United States, which reads in full as follows:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby; any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

It is true that the treaty-related provision of the above-quoted clause was primarily adopted by the Constitutional Convention meeting in Philadelphia during the Summer of 1787 to prevent the individual States of the new Union being proposed in replacement of the Confederation from, on their own, altering provisions of treaties (as had already been done by a number of the States- primarily with the Second Peace of Paris of 1783 that ended the American Revolution and forced British [and, by extension, international] recognition of an independent United States of America)- this is made abundantly clear by the penultimate and ultimate subclauses of the whole clause; however, once the Framers' new document clearly placed the responsibility for enforcing treaties in the new Federal Government they were creating by taking any such power from the States that would now be the constituents of that Federal Government, any treaties that the United States had already made under the old Confederation- as well as, and more to the point, any treaties the new Federal Government would thereafter make- were to be as much a part of Federal Law as any statute passed by Congress or even the new Constitution itself.

I will go even further and suggest that- given the actual wording of this clause within the original text of the U.S. Constitution- any Federal law and any treaty to which the United States is a signatory is as much a part of the Federal Constitution as the Constitution- the written document- itself: for read Article VI, clause 2 most carefully... it does not give any higher importance to the Constitution as the Supreme Law of the Land than it gives to any laws or treaties made under that Constitution's authority; nor does it make treaties inferior to the Federal laws or the Constitution itself in this regard. Clearly, the Supreme Law of this Land is as follows:

1. the Constitution of the United States- including all Amendments and any and all Constitutional Law discernable from the decisions and accompanying written opinions of the Federal courts, primarily- and most obviously- those of the United States Supreme Court.

2. all Federal law- including not only statutes passed by Congress and signed into law by a President of the United States (or passed again by two-thirds of each house of Congress over a President's veto) but also all rules and regulations made by a Federal agency under the authority of such statutes.

3. all Treaties to which the United States of America, as a sovereign Nation-State, is a party...

although with one caveat: assuming that, in the cases of categories 2 and 3 above, these laws and treaties subsequently pass constitutional muster- that is, where a case or controversy is brought to court, a given law or treaty (or any portion thereof) comes to be deemed as constitutional (that is, not in conflict with that contained within category 1).

To many, what I just outlined will seem to be something of a "no-brainer" yet, at the same time, not quite explain to them why such laws in category 2 and treaties in category 3 are as much part of the concept of a Federal Constitution as category 1- American Constitutional Law itself- under Article VI, clause 2. We are here back to the question: what did the Framers themselves know?... or, to be more accurate, what could the Framers have known?-- dismissing at once from a reasonable appraisal of their understanding of the words they were putting to parchment any concepts they could not have either considered or, at best, surmised as perhaps being a likely product of their very near future.

In the British Empire, still in early development at the time that the 13 colonies which became the United States of America seceded from it in 1776, Parliament at Westminster was supreme: there was not then- nor is there now- a written Constitution governing the United Kingdom. The English, becoming British, Constitution was (and yet remains) a mixture of statutes of Parliament which themselves had altered the Common Law, those portions of the Common Law made in the course of judges adjudicating cases brought before them and subsequently not at all altered by Parliament, along with other related customs and traditions, as well as any Treaties made on behalf, and in the name, of the British Crown: this, then, was what made up the Supreme Law of the Land in the British Imperial System. Note that Parliament itself could, at any time, unfetteredly alter any jot or tittle of the unwritten English/British Constitution subject only, back in the late 18th Century, to the Royal Assent (it might well be argued that, in early 21st Century Britain, Parliament- while it no longer governs on behalf of a vast Empire- is even more supreme because the Royal Assent is hardly ever- if ever!- accompanied by its opposite, the Royal Veto).

This late 18th Century Parliament of England- functioning with the addition of members from Scotland since the creation of the United Kingdom of Great Britain by the Union Act of 1707 (members from Ireland would be added in the later Union Act of 1801)- was what the Framers of the U.S. Constitution knew and could have known while they were drafting their new written instrument; such was the case also with the powers and prerogatives of that Parliament at that time. In the new Federal System the Framers were creating the Congress of the United States would, of course, not be so powerful as the Parliament of England (just as the new "elected King" known as a President for which the Framers were also providing in their document was, by no means, to be as powerful as the King of England of their time)-- there were, to take one obvious example, to be an independent Federal Judiciary (though the Framers left it at least somewhat unclear just how that Judiciary would perform, leaving the devil of the details to the new Congress) along with the written instrument- the Constitution- itself which would "rein in" Congress and the President in a way that Parliament and King could not be so restrained; however, these same Framers- having been, not all that long before, British subjects themselves- also viewed the laws and treaties passed under authority of any Constitution as being as much a part of that Constitution (in Britain, unwritten; in America, written) in a sense broader than that of merely the instrument itself. The words of Article VI, clause 2 must be read in light of the Framers' own observations and experience: hence my earlier statement that "any Federal law and any treaty to which the United States is a signatory is as much a part of the Federal Constitution as the Constitution itself"-- because that's how the Framers would have understood it!

The Relationship of the United States to the United Nations and vice versa

The Charter of the United Nations was hammered out at the United Nations Conference on International Organization met in San Francisco from 25 April through 26 June 1945 (keep in mind that "United Nations" originally denoted the Allies fighting against the Axis in World War II and resulted from the Declaration by United Nations originally put forth on New Year's Day, 1942- this Declaration itself embodying the concepts agreed to by President Franklin Delano Roosevelt and British Prime Minister Winston Churchill meeting "somewhere in the North Atlantic" and first written into the resultant Atlantic Charter of the year before; the phrase itself was suggested by the poetry of Lord Byron:

Here, where the sword United Nations drew,
Our countrymen were warring on that day!
And this is much-- and all-- which will not pass away.

These "United Nations"- on the verge of defeating Nazi Germany and in the process of defeating the Empire of Japan- were the ones so meeting, hence the name of this international conference: only during the course of the conference was the title "United Nations" passed on to the new international organization being created in place of the moribund League of Nations by that conference). On the final day of the conference, the conferees- including those representing the United States- signed the Charter that had been drafted; once that was done, the United Nations Charter became a Treaty subject to the terms of Article II, Section 2, clause 2 which begins with the words "[the President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur...". On 28 July 1945, the United States Senate so ratified the United Nations Charter by a vote of 89 to 2 (thereby fulfilling the provisions of the U.S. Constitution) and, on 8 August 1945, the United States of America became the first United Nations Member-State to deposit its instrument of ratification with the new organization (thereby fulfilling the provisions of the U.N. Charter): once that had occurred (and, no, the singular irony of the USofA having formally notified the UN of its ratification of the Charter in between the only two times [so far, at least!] nuclear weapons were used in wartime is not at all lost on me; in a sense, this factoid is quite symbolic of the transition of the term "United Nations" from the designation of a wartime alliance to the name of an organization devoted, at least in theory, to collective security through maintaining the peace), the United Nations Charter- in its capacity as a Treaty to which the United States was a signatory and which was ratified according to the procedures authorized by its own Constitution- was legally a Treaty "made under the authority of the United States" and, per Article VI, clause 2, then became part of the Supreme Law of the Land: that is, a part of the United States' own Constitution insofar as the provisions of said Charter were themselves constitutional in relation to the United States!

Now there are those reading this who might see, in that last statement of mine, something of a danger- where they might not also see it as anathema, let alone a threat to United States sovereignty... Hardly! For, again, read very carefully the words of the relevant first portion of Article VI, clause 2 of the U.S. Constitution: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the Supreme Law of the Land...

But which Laws of the United States, for example, qualify as the Supreme Law of the Land? Any and all laws Congress might conceivably have passed??...

NO!!!

In two of my responses to the many 'vox Populi' I received about my two Commentaries last week on the New Jersey Senate election race- where Senator Torricelli dropped out of that race and the Democrats (successfully deflecting a Republican legal challenge) replaced him on the ballot with a new candidate- I touched upon a related interpretation of just such wording as that contained in Article VI, clause 2. The 'vox'er claimed that, because the New Jersey statute dealt with a candidate's withdrawal "which vacancy shall occur not later than the 51st day before the general election", any replacement of a withdrawing candidate on or after the 50th day before Election Day was disallowed and that, even if one argued that the statute was silent about what should happen regarding a replacement after that time, there was a further provision reading "A selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election..." that made it illegal, in any event, to make a replacement of a withdrawing candidate on or after the 47th day preceding Election Day. In response, I opined that a valid legal argument could be made that a withdrawal made on or after the 50th day preceding the Election was, in fact, not at all "[a] selection made pursuant to this section" and that, therefore, the second "48th day" provision would be- absent specific language in the statute stating otherwise (and there, indeed, is none!)- as irrelevant to the situation presented the New Jersey Democrats by Senator Torricelli's withdrawal as the first "51st day" one.

Likewise, and I ask again, which Laws of the United States are the Supreme Law of the Land? Which Laws of the United States are as part and parcel of the Federal Constitution as the Constitution itself?? Only those which shall be made in Pursuance thereof !! If Congress passes a statute and the President should sign it but someone subsequently brings a "case or controversy" related to said statute in the courts and the U.S. Supreme Court should then deem the statute- even though legally adopted by Congress- to be in conflict with the Constitution itself (as defined in category 1 earlier in this piece), such statute is- obviously- to be considered "unconstitutional" and is thus- by very definition of the word "unconstitutional"- not a Law of the United States "made in Pursuance" of that Constitution; such statute, therefore, cannot any longer be considered part of the Supreme Law of the Land! So says Article VI, clause 2 of the U.S. Constitution because only those laws "made in Pursuance" of the Constitution can be the Supreme Law of the Land!!

It is the same for Treaties as well under that very same Article VI, clause 2. A Treaty that is unconstitutional- that is, the provisions of which conflict with the Constitution of the United States- cannot any longer be considered to have been "made under the authority of the United States" because how can the United States possibly authorize that which its own Constitution does not itself allow? Thus, how does the United States- in its relationship to the United Nations- possibly drop down to (3)- a dependent but sovereign state- in Professor Snyder's general propositions relative to Sovereignty enumerated earlier in this piece from its current position as (2) in that enumeration- an independent sovereign state?? And, if the United States cannot so drop down under the current interplay of Article VI, clause 2 of its own Constitution in relation to the United Nations Charter, how then is the United Nations as an institution a threat to United States sovereignty???

Yet there was quite a bit of silly talk- particularly among Republican supporters of the Iraq Resolution of this week, especially in the U.S. House of Representatives- about how, were amendments requiring the President to come back to Congress and ask for another future Resolution specifically authorizing war with Iraq (should the Security Council not act on enforcing its own Resolutions more effectively) to be adopted, such amendments "would be giving the UN Security Council a veto over the United States' right to defend itself"... What abject nonsense! Let's take a careful look at Article 51 of the UN Charter (a document which is, absent a finding of unconstitutionality by the courts in this country, part of the Supreme Law of the Land- indeed, a portion of the Federal Constitution in its broader sense- for the reasons I outlined above):

Article 51 reads as follows:

Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defense shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain and restore international peace and security.

Even if this provision of the UN Charter did not exist, the United States would retain its constitutional power to defend itself (including the doctrine of Anticipatory Self-Defense as explained in my Commentary of this past 8 September) under its own Constitution; moreover, it does not, in any wise, give up its right to do so even under the terms of the UN Charter where such a right of self-defense is mentioned (and, were the UN Charter- or any actions taken by the UN as an organization under its Charter- to be interpreted as requiring the United States to give up said right, such would clearly be deemed to be unconstitutional under the terms of the US Constitution and those provisions of the UN Charter so deemed unconstitutional would then cease to have the status of being part of the Supreme Law of this Land!). It is true that, theoretically, the UN Security Council would be permitted- under the UN Charter- to "do what it had to do" were the United States to act without UN sanction (the phraseology "Measures taken by Members in the exercise of this right of self-defense... shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain and restore international peace and security" found in Article 51 makes this abundantly clear); in practice, however, the veto the United States itself wields in the Security Council as one of the five Permanent Members would render the exercise of this provision a nullity, at least insofar as the United States itself is concerned. Thus, there is no "veto" the UN Security Council can possibly hold over the United States in its own judgment as to when, where and how to exercise its military power! All this "UN veto over US" talk in the halls of Congress was merely rather lame justification for pushing Congress (successfully, as things turned out) to turn its inherent power "to declare war" on Iraq over to the White House without much restriction on the President's subsequent use of said power-- nothing more, nothing less!! Again, Politics- pure and simple... but nothing much grounded in constitutional reality!!!

 


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