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James Madison: Essay on Sovereignty

Dec. 1835

Sovereignty

It has hitherto been understood, that the supreme power, that is, the sovereignty of the people of the States, was in its nature divisible; and was in fact divided, according to the Constitution of the U. States, between the States in their United, and the States in their individual capacities that as the States in their highest sov. char. were compent to a surrender of yr whole sovereignty, and make themselves on consol. state so they surrender a part & retain as they have the other part, forming thus a mixed Govt. with a division of its attributes as marked out in the Constitution.

Of late another doctrine has occurred, which supposes that Sovereignty is in its nature indivisible; that the Societies denominated States, in forming the constitutional compact, of the U. States acted as indivisible Sovereignties; and consequently, that the Sovereignty of each, remains as absolute and entire, as it was then, or could be at any time.

This discord of opinions, arises from a propensity in many to prefer the use of theoretical guides technical language, to the divisions or depositories of pol. power, as laid down in the Constl. Charter, which expressly assigns certain powers of Govt. which are the attributes of sovereigty to the U. S. and even declares a practical supremacy of them over the powers reserved to the States; a Supremacy essentially involving that of exposition as well as of execution: For a law could not be supreme, in one depository of power, if the final exposition of it belonged to another.

In settling the question between these rival claims of power, it is proper to keep in mind, that all power in just & free Govts. is derived from Compact, that where the parties to the Compact are competent to make it, and where the Compact creates a Govt, and arms it not only with a moral power but the physical means of executing it it is immaterial by what name it is called. Its real character is to be decided by the Compact itself: by the nature & extent of the powers it specifies, and the obligations imposed on the parties to it.

As a ground of compromise let them, the advocates for State Rights acknowledge this rule of measuring the federal share of sovereign power under the Constl. Compact, and let it be conceded on the other hand, that the States are not deprived by it of that corporate existence & pol. unity, which wd. in the event of a dissolution voluntary or violent, of the Constl. replace them in the condition of separate communities, that being the condition in which they entered into the compact.

condition of an independ. & full sovereignty; as was the effect of the Decln. 1776, which dissolved our connection with the G.B. and an exclusive the States individually to the character they at the formation of the compact

An the period of our revoln. it was supposed by some that it dissolved the social compact within the Colonies and produced a state of nature which required a naturalization of those who had not participated in the revoln. The question was brought before Congs. at its first Session, by Dr. Rand<olph?> who contested the election of Wm. Smith who tho’ born in S. C. had been absent at the date of Independence. The decision was that his birth in the Colony made him a member, of the Society, in its new as well as its original State.

See letter to Webster Mar. 15. 1833.

Which of these views of the subject ought to be held the true one is a question of theoretical curiosity; but may be of less practical importance than the zeal of party has ascribed to it—

[To go to the bottom of the subject let us consult the Theory, which contemplates a certain number of individuals, as meeting & agreeing to form one political Society, in order that the rights the safety & the interest of each may be under the safeguard of the whole.

The first supposition is that each individual, being previously independent of the others, the compact which is to make them one Society, must result from the free consent of every individual.

But as the objects in view could not be attained, if every measure conducive to them, required the consent of every member of the Society, the theory further supposes, either that it was a part of the original compact, that the will of the majority was to be deemed the will of the whole; or that this was a law of nature, resulting from the nature of political society, itself the offspring of the natural wants of man.

What ever be the hypothesis, of the origin of the lex majoris partis, it is evident that it operates as a plenary substitute of the will of the majority of the Society, for the will of the whole Society; and that the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members; the reserved rights of individuals (of Conscience for example), in becoming parties to the original compact, being beyond the legitimate reach of Sovereignty, wherever vested or however viewed.

The question then presents itself how far the will of a majority of the Society, by virtue of its identity with the will of the Society, can divide, modify or dispose of the Sovereignty of the Society. And quitting the theoretic guide, a more satisfactory one will perhaps be found 1. in what a majority of a Society has done and been universally regarded as having had a right to do 2. what it is universally admitted that a majority by virtue of its sovereignty might do, if it chose to do <it>

1. The majority has divided the Sovereignty of the Society, by actually dividing the Society itself into distinct Societies, equally Sovereign. Of this operation, we have before us examples in the separation of Kentucky from Virginia; and of Maine from Massachusetts; events wch. were never supposed to require a unanimous consent of the individuals concerned. In the case of naturalization a new member is added to the Social compact, not only without a unanimous consent of the members but by a majority of the governing body deriving its powers from a majority of the individual parties to the social compact

2. As in those cases just mentioned one sovereignty was divided into two, by dividing one State into two States, So it will not be denied that two States, equally sovereign, might be incorporated into one, by the voluntary & joint act of majorities only in each. The Constitution of the U. S. has itself provided for such a contingency. And if two States, could thus incorporate themselves into one, by a mutual surrender of the entire sovereignty of each; why might not a partial incorporation, by a partial surrender of sovereignty, be equally practicable, if equally eligible. And if this could be done, by two States, why not by twenty or more.

A division of sovereignty, is, in fact illustrated by the exchange of sovereign rights often involved in Treaties between Independent Nations; and Still more in the Several Confederacies which have existed, and particularly in that which preceded the present Constitution of the U. States]

Certain it is that the Constitutional compact of the U.S has allotted the supreme powers of Govt. partly to the U States by special grants, partly to the individual States by general reservations, and if Sovereignty be in its nature divisible; the true question to be decided is whether the allotment, has been made by the competent Authority. And this question is answered by the fact, that it was an act of the majority of the people in each State in their highest sovereign capacity equipollent to a unanimous act of the people composing the State, in that capacity.

It is so difficult to argue intelligibly concerning the compound System of Govt. in the U. S. without admitting the divisibility of Sovereignty, that the idea of sovereignty as divided between the Union and the members composing the Union, forces itself into the view and even into the language of those most strenuously contending for the unity & indivizibility, of the moral being created formed by the Social compact. "For security agst. oppression from abroad we look to the Sovereign power of the U. S. to be exerted according to the compact of Union; for security agst. oppression from within, or domestic oppression, we look to the sovereign power of the State. Now all Sovereigns are equal; the Sovereignty of the State is equal to that of the Union; for the Sovereignty of each is but a moral person. That of the State and that of the Union are each a moral person; & in that respect precisely equal". These are the words, in a speech which more than any other, has analized & elaborated this particular subject; and they express the view of it finally taken by the Speaker*, notwithstanding the previous introductory one, in which he says, "The States whilst the Constitution of the U. S. was forming, were not even shorn of any of their Sovereign power by that process" Tellegraph Mar. 23. 1834 or 3 et sequent in the Enquirer of Apl. 20.

*Mr. Rowan of Kentucky

That a sovereignty would be lost & converted into a vassalage, if subjected to a foreign Sovereignty, over which it had no controul, and in which it had no participation, is clear & certain; but far otherwise, is a surrender of portions of Sovereignty by compacts among Sovereign Communities making the surrenders equal & reciprocal; & of course giving to each as much as is taken from it

Of all free Govts. compact is the basis & the essence: and it is fortunate, that the powers of Govts. supreme as well as subordinate can be so moulded & distributed, so compounded and divided by those on whom they are to operate as will be most suitable to their conditions, and best guard their freedom, and best provide for their safety & happiness.

Draft (DLC).

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