American Sovereignty Is Not as Limited as in 1788 or Absolute as before 1776

Some ignore, fear or even oppose and obstruct our learning about the sovereignty that We the People clearly declared in our Constitution. Many opponents are purported public servants who want the people not to understand the proper power of the people or the proper place of public servants under our Constitution. Some are people who fear mob rule or rule by the leader(s) of a mob. Some are people who fear rule by the kind of people who ruled in 1788. History and human nature have long and repeatedly proved the validity and importance of all such concerns. Even so, all are founded on misunderstandings or misconstructions of our Constitution. More importantly, no such concern (or combination of such concerns) can override the plain meaning of the plain text and the plain purpose of our written Constitution. That is the very reason it is written.

American sovereigns—the People—of today clearly cannot be limited to those of our past. Pay no heed to myopic distractions such as arguments that “the People” of the past (e.g., in 1776 or 1788 or 1791) did not include all the people that it includes today. That is true but irrelevant to identifying “the People” of today. As somebody else wisely observed (and SCOTUS justices have repeated), “The past is a foreign country; they do things differently there.”

For very good and very profound reasons, Article V of our Constitution pointedly emphasized that our Constitution could be amended. Article V was an express acknowledgment that our Constitution required correction. The people who wrote and ratified our Constitution (the Framers and Founders) knew and believed—from the outset—that their own work required correction. They knew it required some corrections immediately and more corrections later. Many actions of very many among the first generation of Americans further emphasized that they all knew our Constitution was far from perfect and required copious correction.

Virtually everyone from 1788-1791 understood the crucial fact that our Constitution was not (and should not be seen to be) perfect. Benjamin Franklin (who helped write the Declaration of Independence in 1776 and the Constitution in 1787 (coincidentally, in the same building in Philadelphia)), put the point well in his speech at the conclusion of the Constitutional Convention on September 17, 1787:

I confess that I do not entirely approve of this Constitution at present, but Sir, I am not sure I shall never approve it: For having lived long, I have experienced many Instances of being oblig’d, by better Information or fuller Consideration, to change Opinions even on important Subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow the more apt I am to doubt my own Judgment and to pay more Respect to the Judgment of others. Most Men indeed as well as most Sects in Religion, think themselves in Possession of all Truth, and that wherever others differ from them it is so far Error. . . .

In these Sentiments, Sir, I agree to this Constitution, with all its Faults, if they are such: because I think a General [national] Government necessary for us, and there is no Form of Government but what may be a Blessing to the People if well administred; and I believe farther that this [Constitution and national government are] likely to be well administred for a Course of Years, and can only end in Despotism as other Forms have done before it, [only] when the People shall become so corrupted as to need Despotic Government, being incapable of any other. I doubt too whether any other Convention we can obtain, may be able to make a better Constitution: For when you assemble a Number of Men to have the Advantage of their joint Wisdom, you inevitably assemble with those Men all their Prejudices, their Passions, their Errors of Opinion, their local Interests, and their selfish Views. From such an Assembly can a perfect Production be expected?

Everyone understood from the outset that our Constitution was not the word of God, but the work of mere men. It was the work of groups of men with limited, self-serving, competing, strikingly conflicting and even brutally clashing interests. Starting to correct our Constitution was the point of a long, difficult, contentious process that began (at least) in 1788. That process began (at least) during the ratification debates in multiple states (including, very prominently, Virginia and New York) even before our Constitution was ratified. Its first achievement was the ratification of our Bill of Rights, the first ten amendments.

The point in 1787 and 1788 was to create one nation out of one people who would then continue to work toward the purposes stated in the Preamble: securing “a more perfect Union,” to better “establish Justice” and to better “secure the Blessings of Liberty” not only “to ourselves,” but crucially, to “our Posterity.”

To see “the People” of today, simply see our Constitution. See who our Constitution expressly introduces as sovereigns. See the definition of “citizens” in Section 1 of Amendment XIV (“All persons born or naturalized in the United States”). Then, see who our Constitution says has the power of sovereigns. Who has the power to directly choose our public servants? Who has the power to vote?

First, the Preamble introduced the first generation, “We the People” who created our Constitution. The second generation included citizens protected by Section 2 of Amendment XIV (all “male inhabitants of [each] State, being twenty-one years of age) and Amendment XV (prohibiting discrimination “on account of race, color, or previous condition of servitude”). The third generation included citizens protected by Amendment XIX (prohibiting discrimination “on account of sex”). The fourth generation included citizens protected by Amendment XXIV (prohibiting discrimination on account of wealth (ability “to pay any poll tax or other tax”). The fifth generation included citizens protected by Amendment XXVI (prohibiting discrimination against people “eighteen years of age or older . . . on account of age”).

At least as important as identifying American sovereigns is ascertaining the limits of the power of American sovereigns. The intellectual and physical struggle to grasp the concept of sovereignty and then steer it in the right direction is the common cause that connects The Glorious Revolution in England (1688-1689) and the English Bill of Rights (1689) and the American Revolution (from before the Declaration of Independence (1776) through the ratification of the original Constitution (1788) and the ratification of the Bill of Rights (1791)).

The Glorious Revolution and the English Bill of Rights established that Parliament was sovereign. Parliament’s sovereignty rested on the principle that Parliament (with the King, i.e., “the King in Parliament”) possessed the power to make all law, and everyone was bound by the law.

Starting in 1765, the roots of the American Revolution grew long and strong, fast and deep. The primary reason for the American Revolution was overruling the result of The Glorious Revolution. It was the disconnect between Parliament’s ideas about its sovereignty over Americans, and Americans’ ideas about who truly could claim sovereignty over them (and us) and how.

Parliament claimed its sovereignty was absolute in all things. Parliament actually and famously issued a law (the Declaratory Act of 1766) claiming “full power and authority to make laws” that “bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.”

Initially, Americans universally accepted (and often said) that Parliament’s sovereignty was “absolute.” But starting in 1765, more Americans and more powerful Americans declared and proved with growing strength and clarity that Parliament’s sovereignty was limited in multiple profound respects. Ultimately, Americans fought a war to end forever any so-called ruler’s claim to sovereignty in America.

The primary and overarching point of the Declaration of Independence was to declare the sovereignty of the people over ourselves. That is the most fundamental and powerful meaning of the words of the second paragraph declaring that “all Men are created equal” with equal “unalienable Rights” including the right to “Life, Liberty, and the Pursuit of Happiness.” The necessary consequence of such powerful “self-evident truths” is that they are the source of our sovereignty. To such truths all government in America always must yield. All “Governments” will and must be “instituted among Men” solely “to secure these Rights” and possessing only “just Powers” derived exclusively “from the Consent of the Governed,” so that “whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its Foundation on such Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness.”

Our Constitution reflected more clearly and expressed more concretely the principles, purposes and means of our self-government declared in the second paragraph of the Declaration of Independence. The significance today of the foregoing must, as our Constitution dictates, be understood as pertaining to the equal rights and powers, equal safety and happiness of all today’s American sovereigns. No group of Americans—not even any majority—has absolute power over all of us.

We the People of today include all the people whose right and power to vote was secured with Amendments XIV, XV, XIX, XXIV and XXVI. The entire remainder of our Constitution must be seen as securing the “privileges” and “immunities” of all citizens by means of republican government in which the supreme power is our Constitution, which precludes absolute power by any person or group of persons over everyone. The Founders and Framers established layers of republican government (state and federal), in which legislative, executive and judicial powers were separated and woven together in a fabric or matrix designed to simultaneously support and restrain power.¹

It should be perfectly clear to all that no public servant—and not even a majority of the people in any state or even throughout this nation—has the power to deprive any of us of any “unalienable Rights” declared in our Declaration of Independence and secured by our Constitution. That truly and clearly is the primary point of declaring rights to be unalienable or inalienable. No generation can even give them away or sell them because our Constitution secures “Justice” and “the Blessings of Liberty” not only to each present generation (“to ourselves”) but also to each future generation (“our Posterity”).

The foregoing principles and purposes were emphasized by Article IV. Our Constitution exists to secure “all Privileges and Immunities of Citizens,” including by “guarantee[ing]” throughout “this Union” (in every state and national government) “a Republican Form of Government.” They were emphasized in Amendment V. “No person” (citizen or not) can “be deprived” by any federal public servant of “life” or any “liberty” or any “property” until after being afforded all “due process of law.”

Such principles and purposes were emphasized again and more specifically in Amendment XIV. “No State” (no government anywhere in the United States) has any power to “make or enforce any law” that “abridge[s any] privileges or immunities of citizens of the United States; nor [does] any State [have any power to] deprive any person” (citizen or not) “of life” or any “liberty” or any “property,” except after affording them all “due process of law; nor” to “deny to any person” (citizen or not) “the equal protection of the laws.”

Our written Constitution exists as a tribute to (and precisely to prevent and restrain) abuses and usurpations of power by people in power (including even any temporary majority of the people). Many times, the founders of the thirteen original states and of our nation emphasized that they designed state and federal constitutions to establish republican (representative) governments to prevent abuses and usurpations of power.

In The Federalist No. 51, James Madison (who was long and rightly lauded as the Father of our Constitution) emphasized that all “government” is “but the greatest of all reflections on human nature.” “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people” (e.g., by making most public servants stand for election periodically) “is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

In The Federalist No. 48, Framers of our Constitution emphasized the common sense (the common knowledge) of the people of 1765 through 1791 of the great dangers of political power. All “power is of an encroaching nature,” so no power can be absolute. All “power” must “be effectually restrained from passing the limits” which must be “assigned to it” in a written constitution and subordinate laws. They emphasized we never can merely “trust to” any “parchment barriers” (constitutions or other laws) “against the encroaching spirit of power.” Any “mere demarcation on parchment of the constitutional limits of” power “is not a sufficient guard against those encroachments which lead to a tyrannical concentration of” the “powers of government.”

“The founders of our republics” (the 13 original states) “never for a moment [ ] turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of” any would-be ruler. They knew and deeply feared that any powerful center will always be “drawing all power into its impetuous vortex.” They knew and deeply feared that any “assembling” of “all power in the same hands must lead” to “tyranny.” For such reasons, in our “representative republic” the “executive magistracy is carefully limited; both in the extent and the duration of its power,” including by Congress’s exercise of “the legislative power” to protect the people by making abuses or usurpations of power criminal.

The foregoing is why the very first, very prompt amendment to our Constitution (the First Amendment) emphasized the right and power of sovereign citizens to think for ourselves, express our own thoughts and assemble and address our public servants representing us in our self-government. The First Amendment emphasizes and secures our freedom of thought, freedom of expression and freedom of association especially regarding (and to protect us from) anyone using religion or politics to try to control us, including to unite us or divide us for any purpose contrary to our Constitution.

1. Documentation discussing the original Constitution commonly pointedly and properly used the word “fabric” to emphasize how power is interwoven and restrained in American state and federal constitutions. The Federalist No. 14 accentuated “the fabrics of” our “governments which have no model on the face of the globe.” The Federalist No. 47 highlighted the New Hampshire Constitution’s emphasis on “the whole fabric of the constitution” creating “one indissoluble bond of unity and amity.”