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
SUMMARY

The doctrine of judicial supremacy has given rise to the current, seemingly interminable, debate between originalists and nonoriginalists over the proper method for determining constitutional meaning that rests on a false premise, namely, that the People, qua sovereign, are generally absent from the political scene.

 
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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, 17761876, at 1617 (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”).

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