The Sovereign's Posterity

• Author: Gregory J. Roden
• Position: Gregory J. Roden holds a J.D. from South Texas College of Law. I wish to thank my family for their support and understanding of my time and effort devoted to this Article, and I would like to express my gratitude to God for the many blessings received while working on this article, 'Thanks be unto Thee, from whom all comes, whenever it goes...
• Pages: 585-649

THE SOVEREIGN’S POSTERITY GREGORY J. RODEN * “What I bear, and clearly perceive to be animated, is innocent of the faults of her who bears it, and has, I beg leave to say, a right to the existence which God has begun to give it.” - Bathsheba Spooner 1 I. I NTRODUCTION “[T]he people are the sovereign of this country.” 2 And, although the people delegated many powers to the federal government in the United States Constitution, they retained for themselves the benefits of “Trial by Jury” under Section 2 of Article 3, the Sixth Amendment, and the Seventh Amendment. 3 By these constitutional provisions, not only was the right to a jury trial guaranteed, but also the power to sit on juries and to be the finder-of-fact. 4 These constitutional guarantees are to be understood “with reference to the meaning affixed to them in the [law] as it was in this country and in England at the time of the adoption of” the Constitution. 5 At the time of the adoption of the Constitution, the people retained the power to determine when life began in the womb by means of matron juries. 6 Pursuant to a writ de ventre inspiciendo , a jury of matrons was impaneled in response to a plea of pregnancy made by a condemned woman “to ascertain whether a woman convicted of a capital crime was quick with child . . . in order to guard against the taking of the life of an unborn child for the crime Copyright © 2015, Gregory J. Roden. * Gregory J. Roden holds a J.D. from South Texas College of Law. I wish to thank my family for their support and understanding of my time and effort devoted to this Article, and I would like to express my gratitude to God for the many blessings received while working on this article, “Thanks be unto Thee, from whom all comes, whenever it goes well with me.” T. Kempis, Of the Imitation of Christ, 3rd bk., ch. 40 (Whitaker House 1981). Where appropriate, I have retained the original spelling when quoting from historical documents to preserve the style of the time-period for the reader’s appreciation. 1 Commonwealth v. Bathsheba Spooner, 2 AMERICAN CRIMINAL TRIALS 1, 49 (1778) (Peleg Chandler ed. 1844). 2 Chisholm v. Georgia, 2 U.S. 419, 479 (1793). 3 U.S. CONST. art. III, § 2; U.S. CONST. amend. VI; U.S. CONST. amend. VII. 4 See U.S. CONST. art. III, § 2; U.S. CONST. amend. VI; U.S. CONST. amend. VII. 5 West v. Gammon, 98 F. 426, 428 (6th Cir. 1899). 6 See James C. Oldham, The Origins of the Special Jury , 50 U. CHI. L. REV. 137, 171–72 (1983). 586 CAPITAL UNIVERSITY LAW REVIEW [43:585 of the mother.” 7 Thereby, as a matter of legal history, the sovereign people retained the right to be the finder-of-fact if any controversy arose over the existence of life in the womb under their jury powers. 8 As a consequence of this proceeding, the existence of a living child en ventre sa mere was established, and the equal protection of the law was brought to bear “to all intents and purposes for the child’s benefit.” 9 Although modern statutes have replaced the finders-of-fact in such situations with physicians, that replacement had already occurred under the common law of one state just two years after the enactment of the Sixth and Seventh Amendments. 10 The fact that the change from juries of matrons to examinations by physicians began under the common law— contemporaneously with the enactment of the Sixth and Seventh Amendments—illustrates that the “substance of the common-law right of trial by jury” was preserved and enhanced in the form of physicians applying the advances of medical science to the task of their examinations. 11 II. T HE P OWER OF THE S OVEREIGN P EOPLE TO A DJUDICATE R IGHTS AS J URIES A. The People as Sovereigns Chief Justice John Jay once said: “[T]he people are the sovereign of this country.” 12 “Sovereignty is the right to govern.” 13 One of the first questions that arose under our Constitution asked who was the ultimate sovereign: the 7 Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 253 (1891). 8 See id. See also supra note 6 (discussing the writ de ventre inspiciendo ). 9 7 THE AMERICAN AND ENGLISH ANNOTATED CASES: CONTAINING THE IMPORTANT SELECTED FROM THE CURRENT AMERICAN, CANADIAN, AND ENGLISH REPORTS 133 (William M. McKinney et al. eds., 1907). 10 Gregory J. Roden, The Sovereign’s Remedy , HUMAN LIFE REV. (Jan. 6, 2015), http://www.humanlifereview.com/sovereigns-remedy/. 11 Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 (1935). See also Gregory J. Roden, Unborn Children as Constitutional Persons , 25 ISSUES L. & MED. 185, 235, 238–39 (2010), http://www.grtl.org/docs/ILM_Spring%2010.pdf. 12 Chisholm v. Georgia, 2 U.S. 419, 479 (1793). 13 Id . at 472. [A] nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince ; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the 2015] THE SOVEREIGN’S POSTERITY 587 states, whose representatives attended the Constitutional Convention, or the people 14 In the 1793 case Chisholm v. State of Georgia , a private citizen from South Carolina brought a suit against the state of Georgia. 15 The state posited that jurisdiction could not be exercised over it because it was immune from the suits of private parties as a sovereign state: “It is said, that Georgia refuses to appear and answer to the Plaintiff in this action, because she is a sovereign State, and therefore not liable to such actions.” 16 Chief Justice John Jay, examining the circumstances surrounding the founding of our Constitution, observed that it was the people who were the ultimate sovereign and established the state and national governments: It is remarkable that in establishing [the Constitution], the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, “We the people of the United States, do ordain and establish this Constitution.” Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, etc. etc. 17 agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. Id. 14 See id. 15 Id. at 430–32. 16 Id . at 469. 17 Id . at 470–71. 588 CAPITAL UNIVERSITY LAW REVIEW [43:585 Noting a key principle in the Constitution of “establish[ing] justice,” 18 Chief Justice Jay found said principle was guaranteed in the Constitution’s provisions granting judicial power: “They are specified in the [second] section of the [third] article, where it is ordained, that the judicial power of the United States shall extend to ten descriptions of cases.” 19 The state argued that this provision was a one-way street: “It is contended, that this ought to be construed to reach none of these controversies, excepting those in which a State may be Plaintiff .” 20 Chief Justice Jay rendered such an interpretation “inconceivable” and even “repugnant to” the text. 21 Instead, he felt the plain meaning of the term “controversies” expressed otherwise. 22 So too, Chief Justice Jay found that the state of Georgia’s argument was against the very principles of justice embodied in the Constitution and the sovereignty of the people: The exception contended for, would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as to the many against the few. It would be strange, indeed, that the joint and equal sovereigns of this country, should, in the very Constitution by which they professed to establish justice, so far deviate from the plain path of equality and impartiality, as to give to the collective citizens of one State, a right of suing individual citizens of another State, and yet deny to those [individual] citizens a right of suing them . . . Words are to be understood in their ordinary and common acceptation . . . . 23 The Chisholm ruling—“that a State is suable by citizens of another State,” 24 —prompted the passage of the Eleventh Amendment, giving states the immunity they argued for in Chisholm . 25 Nevertheless, that did not change the status of the people as the sovereign because Chisholm ’s “great 18 Id. at 465. 19 Id . at 475. 20 Id . at 476. 21 Id . 22 Id. at 476–77. 23 Id . at 477. 24 Id . at 479. 25 Mark Strasser, Chisholm, the Eleventh Amendment, and Sovereign Immunity: On Alden’s Return to Confederation Principles , 28 FLA. ST. U.L. REV. 605, 606–07 (2001). 2015] THE SOVEREIGN’S POSTERITY 589 and glorious principle, that the people are the sovereign of this country,” remained the same. 26 Forty-three years after Chisholm , the U.S. Supreme Court, in Mayor, Aldermen, and Inhabitants of New Orleans v. United States , declared “[a]ll powers which properly appertain to sovereignty, which have not been delegated to the federal government, belong to the states and the people.” 27 More recently, in Seminole Tribe of Fla. v. Florida , Justice David Souter observes that “ultimate sovereignty rests in the people themselves.” 28 He notes that Alexander Hamilton, in The Federalist No. 22, was “acknowledging the People as ‘that pure original fountain of all legitimate 26 Chisholm , 2 U.S. 419 at...