The Myth of the Absent Sovereign

• Author: Thomas R. Laehn
• Position: Ph.D., J.D. Candidate, May 2017, The University of Iowa College of Law. I am grateful to Christina Bohannan, John Hendrickson, Benjamin Newton, and Mark Rush for their valuable comments on earlier drafts of this article. I also want to thank the students in my seminar on Constitutional Interpretation at McNeese State University during the...
• Pages: 79-105

THE MYTH OF THE ABSENT SOVEREIGN

THOMAS R. LAEHN*

I.!INTRODUCTION

According to the doctrine of judicial supremacy, the Supreme Court of

the United States is the final arbiter of disputes over the Constitu tion’s

meaning and, thus, the ultimate expositor of the nation’s supreme law.1

While the doctrine has gained such widespread acceptance as to become a

part of American constitutional orthodoxy,2 this article contends it is actually

a constitutional heresy that cannot be reconciled with either the foundational

premises or the actual historical operation of the American constitutional

system.3 In order to provide the theoretical and historical framework upon

which this twofold critique depends, I begin in Part II by describing the

centrality of the doctrine of popular sovereignty to the American

constitutional tradition and the emergence of the seemingly incompatible

doctrine of judicial supremacy.4

Then, in Part III, I offer my first critique of the doctrine of judicial

supremacy.5 In particular, I contend t hat the do ctrine has given rise to the

current, seemingly interminable, debate between originalists and

nonoriginalists over the proper method for determining constitutional

meaning.6 Importantly, I show that under either an originalist or a

nonoriginalist jurisprudence, popular self-government is an illusion.7 If

judicial supremacy is a false doctrine, however, the current impasse between

originalists and nonoriginalists dissolves and the possibility of genuine self-

government is not foreclosed.

Copyright © 2016, Thomas R. Laehn.

* Ph.D., J.D. Candidate, May 2017, The University of Iowa College of Law. I am grateful

to Christina Bohannan, John Hendrickso n, Benjamin Newton, and Mark Rush for their

valuable comments on earlier drafts of this article. I also want to thank the students in my

seminar on Constitutional Interpretation at McNeese State University during the spring 2012

academic term whose questions and insightful discussions first prompted me to formulate my

argument.

1 See K EITH E. WHITTINGTON, POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE

PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN U.S. HISTORY 6–7

(2007) [hereinafter POLITICAL FOUNDATIONS].

2 See, e.g., Cooper v. Aaron, 358 U.S. 1, 18 (1958).

3 See infra Part II.

4 See infra Part II.

5 See infra Part III.

6 See infra Part III.

7 See infra Part III.

80 CAPITAL UNIVERSITY LAW REVIEW [45:79

Finally, in Part IV, I argue the doctrine of judicial supremacy rests on a

false premise, nam ely, that the People, qua sovereign, are generally absent

from the political scene.8 I demonstrate that the People have in fact

exercised active control over the Constitution’s meaning across American

history.9 The doctrine of judicial supremacy is thus unsound both as a matter

of logic, insofar as it generates contradictory conclusions concerning the

appropriate method of constitutional exegesis, and as a matter of history,

insofar as it is inconsistent with the actual histo rical functioning of the

American Republic.

II.!POPULAR SOVEREIGNTY AND THE DOCTRINE OF JUDICIAL

SUPREMACY

Within American constitutional thought, the doctrine of popular

sovereignty, according to which the People are the supreme authority within

the territorial limits of a state and the fount from which all legitimate

political power flows, is axiomatic.10 In every state, declared William

Blackstone, “there is and must be . . . a supreme, irresistible, absolute,

uncontrolled authority, in which the jura summi imperii, or the rights of

sovereignty, reside.”11 Moreover, as Thomas Hobbes rightly insisted, such

sovereign authority is necessarily indivisible: within any particular territory,

there can be, by definition, but one supreme authority.12 In Lord

8 See infra Part IV.

9 See infra Part IV.

10 Cf. MICHAEL P. ZUCKERT, THE NATURAL RIGHTS REPUBLIC: STUDIES IN THE

FOUNDATION OF THE AMERICAN POLITICAL TRADITION 17 (1996) (observing that the

Declaration of Independence has the structure of a “geometric proof” in which the self-

evident truths enumerated in the document’s second paragraph, including the proposition that

governments derive their powers from the consent of the governed, provide “the major

premises of the syllogism, or the ‘axioms’ of the proof”).

11 1 SIR WILLIAM BLACKSTONE, KNT., COMMENTARIES ON THE LAWS OF ENGLAND IN FOUR

BOOKS 49 (Philadelphia, Robert Bell, 1771).

12 THOMAS HOBBES, HUMAN NATURE AND DE CORPORE POLITICO 116 (J.C.A. Gaskin ed.,

1994). Forrest McDonald’s contention that the America n Founders created a system of

divided sovereignty, in which the national and state governments were each supreme within

their respective spheres of activity, is incorrect. Sover eignty remained undivided in the

People, who defined the objects of national and state governmental regulation and who could

at any time extend or diminish the compass within which each government exercised its

powers. Otherwise, sovereignty would actually reside in w hichever government possessed

the authority to resolve disputes over the boundary demarcating the spheres within which

each government operated. See FORREST MCDONALD, STATES’ RIGHTS AND THE UNION:

IMPERIUM IN IMPERIO, 1776–1876, at 16–17 (2000); cf. THE FEDERALIST NO. 46, at 255 (James

Madison) (J. R. Pole ed., 2005) (stating “[t]he federal and state governments are in fact but

different agents and trustees of the people” and “the ultimate authority, wherever the

derivative may be found, resides in the people alone”).