What Limits The Prerogatives Of Sovereign Power?
“The king can do no wrong.” Since the United State came into existence as the result of a Declaration of Independence that charged various grave wrongs against the King of Great Britain, it should surprise no one that this legal maxim doesn’t weigh heavily on the public mind in the United States. It helps a bit to recast it in terms of national sovereignty— “The sovereign of a state can do no wrong”—but even then, our sense of allegiance to the Constitution of the United States makes it problematic.
To be sure, we are these days more than ever conscious of our sovereignty as a nation. After all, disaffection with lax enforcement of our borders, and our laws governing immigration, probably played a decisive role in our last presidential election. But when someone talks about the sovereignty of the state, it is not the body politic but the institutions of government that come to mind. And the idea that our Constitution sets limits on the government’s behavior, explicitly couched in terms of the difference between right and wrong, is commonly evoked by all sides in our political discussions.
“I have the right to an attorney.” I have the right to know the charges against me.” “I have the right to keep and bear arms to secure liberty.” I have the right to speak my mind.” I have the right to love whom I please.” “We have the right to worship, the right to demonstrate, the right to print, tweet, post and above all, complain.” Thanks to the terms of our Constitution, our complaints are almost always phrased in terms of the government’s violation of this or that right. This means, of course, that we take it for granted that government is prone to do all kinds of wrongs, and it is our right, indeed our duty, to be vigilant in opposing them.
This presumption was clearly articulated in the Declaration of Independence, which held the security of God-endowed rights to be the primordial reason government institutions exist. On that account, when people are systematically and consistently subjected to government actions that violate their rights (“a long train of abuses”), “it is their right, it is their duty, to throw off such government, and to provide new guards for their future security.”
So, the duty to oppose abusive government is, in effect, the basis for asserting the people’s right of self-government, which is to say their sovereignty as a people. This duty applies to all government. So, it must also apply to the self-government of the people. When on their own behalf, the people establish a government over themselves, it exists to secure God-endowed, unalienable rights (i.e., right actions). The people are therefore bound, by the stated premise of their own power (that is, by the logic that authorizes their exercise of it) to refrain from wrongdoing.
This does not mean that they are never free to wrong themselves. They certainly have the capacity to do so. It means that if they exercise self-abusive freedom, they vitiate the authority by which they claim that their self-government is right. Indeed, they transfer that authority to the people they wrong. The latter are then bound by right and duty throw off the government of such an abusive people.
By this logic, it’s apparent that, as a matter of right, the authority of democratic self-government is supposed to be intrinsically self-constraining. People who abuse their power of self-government to do wrong transfer to those they wrong the rightful claim of authority that justifies the use of power against the abusers. In principle, the abusers surrender their right to govern. Their wrongdoing transfers that right to others, making it the duty of those others to deploy whatever power they can to secure it.
In terms of legitimate power, this reasoning makes sense of the statement that “the king can do no wrong,” when that maxim is applied to the sovereignty of the people. The people cannot abuse government power without destroying the premise that authorizes them to wield it. This fact may not immediately deprive them of the material power to rule. But it does deprive them of the claim to do so by right. That claim passes to those whom they oppress. At first, this may be mainly a transfer of moral energy.
But as one side gives up that moral energy, and the other waxes confident on account of it, the process demoralizes the one, as it contributes to the moral cohesion of the other. Provided the latter have access to some institutional rallying point, the fact that the contest between them ultimately boils down to a test of wills, favors the side whose will is energized by the sense that they are in the right. The process may take generations, but as long as people remain confident of their right, they will ultimately prevail.
The Constitution of the United States was framed with a view to making sure that some institutional focal point would always be available to people willing to adhere, with reasonable consistency, to the premises of right that authorize the self-government of the American people. The division of government into three branches, and into various States and localities reflects this aim. So, does the division, in the national legislature, which mirrors the age-old competition between the many and the few, the people and the elites, the rich and the poor. The Constitution gives each some premises on which to gather their strength.
To be sure, the provisions of the Constitution assume that the age-old premise of raw power— the force of wealth, martial prowess, or numbers—continue to operate. But they also make provision for the distinctive premise of humanity’s characteristic power—the power of reason, and of the words that express its trains of thought. It is the power of deliberate choice, which reasoning makes possible. Above all, however, it is the power of faith in the common sense of humankind, which intuitively comprehends that the way of being that that substantiates our reasoning also substantiates our inward sense of the significance, worth and meaning of existence—both our own and that of the world in which we exist.
This is the way of being that the poet spoke of, who assured his readers that “like the trees and the stars, you have a right to be here.” But our knowledge of the rightness of it, is the special quality that raises our thought beyond existence, to the being itself that informs and makes existence possible. Thus, beyond right there is God, who endows and determines what is right. Without God’s provenance, we would know neither right nor choice, neither law nor liberty. We would have experience, but without knowing it as such. We would be responsive, therefore, but devoid of responsibility. For without reference to the creator, God, the premises of right (and wrong withal), including liberty, having no authority, and will simply give way to material forces.
So, when people talk of rights without reference to God’s Creation, what choice do Americans have but either to reject their nonsense, or else allow the return of the state of things in which might makes right; and in which there is no reason to govern us, but only the rule of superior force. In that world there is no property but in superior material force, and in the creatures, forgetful of their humanity, it enslaves.